THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 
GIFT  OF 

Dr.  Gordon  Ireland 


A  GIFT  FOR  STUDENT  AND  RESEARCH 
USE  FROM  THE  LIBRARY 

OF.  .  . 
DR.  GORDON  IRfi  AND    '  <?  n 


Leading  Cases 


on 


International  Law 


By  LAWRENCE  B.  EVANS,  Ph.  D. 

Ml 

Counsel  to  the  Brazilian  Embassy,  Washington 
Special  Counsel  to  the  United  States  Shipping  Board 


Second  Edition 


•  » 

u 


COPYRIGHT  1922 
BY 

CALLAGHAN  &  COMPANY 


lii 


With  law  shall  our  land  be  built  up 
and  settled,  and  with  lawlessness  wasted 
and  spoiled. 

— The  Story  of  Burnt  Njal. 


What  we  seek  is  the  reign  of  law  based 
upon  the  consent  of  the  governed  and 
sustained  by  the  organized  opinion  of 
mankind. 

— Woodrow  Wilson. 


It  is  impossible  that  the  human  mind 
should  be  addressed  to  questions  better 
worth  its  noblest  efforts,  offering  a  greater 
opportunity  for  usefulness  in  the  exercise 
of  its  powers,  or  more  full  of  historical 
and  contemporary  interest,  than  in  the 
field  of  international  rights  and  duties. 

— Elihu  Root. 


848593 


PREFACE  TO  THE  SECOND  EDITION 


In  acceding  to  the  request  of  my  publishers  to  prepare  a  new 
and  enlarged  edition  of  my  collection  of  cases  on  international 
law,  I  have  utilized  the  opportunity  to  introduce  some  topics 
which  were  not  included  in  the  first  edition  as  well  as  to  treat 
the  several  subjects  with  greater  fulness  than  was  there  pos- 
sible. While  all  the  cases  which  make  up  the  body  of  the  collec- 
tion are  taken  from  English-speaking  jurisdictions,  they  repre- 
sent considerable  variety  in  point  of  view  since  they  include 
decisions  from  the  highest  courts  of  Massachusetts,  New  York 
and  New  Jersey,  the  several  inferior  Federal  courts,  the  Court 
of  Claims  and  the  Supreme  Court  of  the  United  States,  while 
the  far-flung  empire  of  our  British  kinsmen  is  represented  by 
decisions  of  the  Judicial  Committee  of  the  Privy  Council,  the 
House  of  Lords,  the  High  Court  of  Justice,  the  High  Court  of 
Admiralty,  the  High  Court  of  Justiciary  and  the  Court  of  Ses- 
sion of  Scotland,  as  well  as  by  the  decisions  of  courts  sitting 
in  Egypt,  South  Africa  and  Hong-Kong.  All  the  cases,  102  in 
number,  which  were  in  the  first  edition  have  been  retained,  and 
46  have  been  added.  The  present  collection  therefore  comprises 
148  cases,  of  which  83  were  decided  in  British  courts  and  65  in 
American  courts.  The  slight  preponderance  of  British  cases  is 
largely  accounted  for  by  the  great  number  of  decisions  made 
by  British  courts  on  questions  of  prize  law  during  the  Great 
War. 

In  making  a  collection  of  cases  on  international  law,  especially 
so  soon  after  a  conflict  in  which  one's  own  country  was  engaged, 
the  temptation  is  strong  to  emphasize  the  controversies  which 
arose  in  the  midst  of  the  conflict  and  to  give  undue  weight  to 
the  law  of  war.  This  temptation  is  all  the  greater  when  one  has 
at  his  disposition  the  opinions  of  such  judges  as  Sir  Samuel 
Evans,  who  was  President  of  the  British  Prize  Court  from  the 
beginning  of  the  Great  War  until  his  death  September  13,  1918, 
of  Lord  Parker  of  Waddington,  Lord  Finlay  and  Lord  Sumner. 
I  have  tried  to  bear  in  mind  however  that  the  normal  relation 


vi  PREFACE. 

of  nations  is  one  of  peace,  and  that  it  is  the  law  of  pacific  inter- 
course rather  than  of  war  which  should  chiefly  hold  our  interest. 
This  is  all  the  more  true  since  the  establishment  by  the  League 
of  Nations  of  a  court  for  the  settlement  of  international  con- 
troversies by  the  application  of  rules  of  law  rather  than  by  those 
compromises  which  from  a  juristic  standpoint  make  arbitral 
tribunals  so  disappointing. 

In  the  editing  of  the  cases,  I  have  abbreviated  some  of  the 
longer  ones  by  the  omission  of  matter  not  essential  to  the  dis- 
cussion of  the  subjects  on  which  they  were  cited.  In  every  in- 
stance, however,  the  facts  out  of  which  the  controversy  arose 
are  given,  as  well  as  a  sufficient  portion  of  the  opinion  to  show 
the  line  of  reasoning  by  which  the  court  reached  its  conclusion. 
Except  for  omissions  and  paraphrases  which  are  indicated  in 
the  usual  way,  the  texts  have  been  reproduced  verbatim  et 
literatim.  The  notes  have  been  much  extended.  While  the  cases 
cited  are  about  1200  in  number  and  have  been  drawn  not  only 
from  British  and  American  jurisdictions  but  also  from  those 
of  France,  Germany,  Holland,  Italy,  Brazil  and  Japan,  and 
while  references  to  the  writings  of  scholars  of  authority  com- 
prise some  350  titles,  neither  list  is  intended  to  be  exhaustive. 
I  have  assumed  that  such  classic  commentaries  as  those  of 
Wheaton,  Phillimore  and  Hall  as  well  as  the  many  systematic 
treatises  which  have  appeared  more  recently  are  sufficiently 
familiar  and  I  have  referred  to  them  only  when  there  was  some 
special  reason  for  doing  so.  Hence  the  writings  cited  in  the 
notes  are  for  the  most  part  monographs  or  articles  in  periodicals. 
A  few  exceptions  may  be  noted.  On  almost  all  topics  reference 
has  been  made  to  the  seventh  edition  of  Bonfils'  Manuel  de  Droit 
International  Public,  prepared  by  Paul  Fauchille,  which  well  rep- 
resents the  Continental  point  of  view;  to  Hyde's  International 
Law  Chiefly  as  Interpreted  and  Applied  by  the  United  States, 
which  as  a  presentation  of  the  isolated  American  point  of  view 
is  all  that  could  be  desired;  and  to  Professor  John  Bassett 
Moore's  monumental  Digest  of  International  Law, — a  work  with 
which  no  student  can  be  too  well  acquainted.  For  further 
bibliographies  reference  may  be  made  to  the  excellent  lists  in 
Fauchille 's  edition  of  Bonfils  and  in  Hershey,  The  Essentials  of 
International  Public  Law.  The  latter  is  the  more  discrim- 
inating. 

It  is  a  pleasure  to  acknowledge  the  assistance  which  I  have 
received  in  the  preparation  of  this  edition  from  Professor  E.  M. 


PREFACE.  vii 

Borchard  of  the  Yale  Law  School  and  Professor  Jesse  S.  Reeves 
of  the  University  of  Michigan,  and  from  my  good  friend  and 
chief,  His  Excellency,  Augusto  Cochrane  de  Alencar,  Ambas- 
sador of  Brazil  to  the  United  States,  who  has  given  me  the 
benefit  of  his  exceptionally  wide  and  varied  diplomatic  experi- 
ence and  has  instructed  me  on  many  points  as  to  the  practice 
of  nations  in  the  conduct  of  international  relations.  To  those 
who  use  this  book,  I  commend  again  the  caution  of  Littleton: 
"And  know,  my  son,  that  I  would  not  have  thee  believe  that  all 
that  I  have  said  in  these  books  is  law,  for  I  will  not  presume  to 
take  this  upon  me.  But  of  those  things  which  are  not  law,  in- 
quire and  learn  of  my  wise  masters  learned  in  the  law. ' ' 

LAWRENCE  B.  EVANS. 
1520  H  Street,  N.  W., 
Washington,  September  7,  1922. 


Vui 


TABLE  OF  CONTENTS 


CHAPTER    I.     THE    NATURE    AND    AUTHORITY    OF    INTER- 
NATIONAL  LAW. 

§  1.  The   Nature   and   Sources   of   International   Law 1 

§  2.  The  Relation  of  International  Law  to  Municipal  Law....     23 

CHAPTER  II.     PERSONS  IN  INTERNATIONAL  LAW. 

§  1.  States    33 

§  2.  Protectorates     59 

§  3.  Belligerent  or  Insurgent  Communities 66 

CHAPTER  III.     THE  CONTINUING  PERSONALITY  OF  STATES     76 
CHAPTER   IV.     STATE    SUCCESSION 84 

CHAPTER  V.     JURISDICTION. 

§  1.  The  Territorial  Sovereignty  of  the  State 108 

§  2.  Jurisdiction  over  Boundary  Rivers 140 

§  3.  Jurisdiction  over  Marginal  Seas 148 

§  4.  Jurisdiction  on  the  High  Seas 157 

§  5.  Jurisdiction  over  Merchant  Ships  in  Territorial  Waters..   172 
§  6.  Jurisdiction  Derived  from  Belligerent  Occupation 186 

CHAPTER  VI.     EXEMPTIONS  FROM  JURISDICTION. 

§  1.  Sovereigns    205 

§  2.  Diplomatic    Agents    212 

§  3.  Public  Property   232 

§  4.  Exterritoriality    261 

CHAPTER     VII.     THE     ACQUISITION     AND     TRANSFER  .  OF 

JURISDICTION. 

§  1.  The    Acquisition   of   Jurisdiction    by    Discover}    and    Oc- 
cupation      281 

§  2.  The  Acquisition  of  Jurisdiction  by  Prescription 286 

§  3.  The  Acquisition  6f  Jurisdiction  by  Conquest 289 

§  4.  The  Acquisition  of  Jurisdiction  by  Cession.. 297 

CHAPTER    VIII.     EFFECTS    OF    THE    TRANSFER    OF    JURIS- 
DICTION. 

§  1.  Effect  on  Public  and  Private  Law 306 

§  2.  Effect  on  Private   Property 320 

ix 


x  CONTENTS. 

CHAPTER  IX.     THE  PACIFIC  RELATIONS  OF  STATES. 

§  1.  Diplomatic  and  Consular  Representatives 326 

§  2.  Treaties    and    Conventions 339 

§  3.  Extradition    346 

CHAPTER    X.     THE    NON-BELLIGERENT     SETTLEMENT    OF 
INTERNATIONAL  CONTROVERSIES. 

§  1.  Arbitration     359 

§  2.  Reprisals    364 

§  3.  Embargo     374 

CHAPTER  XI.     THE  BELLIGERENT  RELATIONS  OF  STATES. 

§  1.  The  Beginning  of  War 378 

§  2.  The  Status  of  Alien  Enemies 389 

§  3.  The  Effect  of  War  on  Treaties  between  Belligerents 398 

CHAPTER  XII.  ENEMY  CHARACTER. 

§  1.  Natural    Persons    411 

§  2.  Artificial   Persons    434 

§  3.  Property    450 

CHAPTER   XIII.     THE    RULE    OF   NON-INTERCOURSE    WITH 
ENEMIES. 

§  1.  Trade  with  the  Enemy 459 

§  2.  Effect  of  War  on  Contracts 477 

§  3.  Effect  of  War  on  Judicial  Remedies 497 

CHAPTER  XIV.     WAR  RIGHTS  AS  TO  PRIVATE  PROPERTY. 

§  1.  Private  Property  on  Land   522 

§  2.  The  Right  of  Visit,  Search  and  Capture  on  the  High  Seas  534 

§  3.  Transfers   of   Enemy  Property 579 

§  4.  The  Rights  of  Intermediate  Parties 596 

§  5.  Exemptions  from   Capture 602 

CHAPTER  XV.     PRIZE  LAW  AND  PRIZE  COURTS 606 

CHAPTER  XVI.     UNNEUTRAL  SERVICE 632 

CHAPTER  XVII.     BLOCKADE. 

§  1.  General    Rules    644 

§  2.  Notified  and   De  Facto  Blockades 661 

§  3.  A  Blockade  must  be  Effective 665 

CHAPTER  XVIII.     CONTRABAND. 

§  1.  Absolute  and  Conditional  Contraband 672 

§  2.  Contraband  Persons   682 

§  3.  Penalty  for  the  Carriage  of  Contraband .  686 


CONTENTS.  xi 

CHAPTER  XIX.  RETALIATORY  MEASURES 702 

CHAPTER  XX.  THE  DOCTRINE  OF  CONTINUOUS  VOYAGE 

OR  ENEMY  DESTINATION 725 

CHAPTER  XXI.  THE  RIGHTS  AND  DUTIES  OF  NEUTRALS. 

§  1.  The  Inviolability  of  Neutral  Territory 771 

§  2.  The    Preservation   of    Neutrality 788 


AUTHORITIES  CITED. 


AUTHORITIES   OTHER   THAN   JUDICIAL   DECISIONS 
CITED  IN  THE  NOTES. 

Aerial  Law  Committee,  Report  of,  Reports  of  International  Law  Asso- 
ciation for  1913-15,  218. 

Albrecht,  A.  E.,  Requisitionen  von  neutralem  Privateigentum,  in- 
besondere  von  Schiffen,  Zeitschrift  fur  Volkerrecht  und  Bundes- 
staatsrecht,  VI,  supplement  I. 

Allin,  C.  D.,  The  Right  of  Angary,  Minnesota  Law  Review,  II,  415. 

Belligerent  Interference  with  Mails,  Minnesota  Law  Review,  I, 

293. 

English  and  German  Prize  Courts  and  Prize  Laws,  Minnesota 


Law  Review,  II,  22. 
- — The  Case  of  the  Appam,  Minnesota  Law  Review,  I,  1. 


Alvarez,  L.,  La  Grande  Guerre  et  la  NeutralitS  du  Chili,  Paris,  1915. 

American  Journal  of  International  Law   (Cited  Am.  Jour.  Int.  Law). 

American  Law  Review. 

American  Political  Science  Review   (Cited  Am.  Pol.  Sci.  Rev.). 

American  Society  for  Judicial  Settlement  of  International  Disputes, 
Proceedings  of. 

American    Society   of    International    Law,    Proceedings   of. 

Angell,  J.  B.,  The  Turkish  Capitulations,  Annual  Report  of  the 
American  Historical  Association  for  1909,  I,  513. 

Annals  of  the  American  Academy  of  Social  and  Political   Science. 

Annuaire   de   1'Institut   de    Droit   International. 

Anson,  Sir  W.  R.,  Principles  of  the  English  Law  of  Contract,  13th 
ed.,  Oxford,  1912. 

Appleton,  Henri,  Des  Effets  des  Annexions  de  Territoires  sur  les  Dettes 
de  1'fitat  demembrg  ou  annex6,  Paris,  1895. 

Ariga,  N.,  La  Guerre  Russo-japonaise  au  Point  de  Vue  de  Droit  Inter- 
national, Paris,  1907. 

Asakawa,  K.,  The  Russo-Japanese  Conflict,  Boston,  1904. 

Atherley-Jones,  L.  A.,  Commerce  in  War,  London,  1907  (Cited  Atherley- 
Jones). 

Baldwin,  S.  E.,  The  Law  of  the  Air-Ship,  Am.  Jour.  Int.  Law,  IV,  95. 
The  Exchange  of  Notes  in  1908  between  Japan  and  the  United 

States,    Zeitschrift    fiir    Volkerrecht    und    Bundesstaatsrecht,    III, 

456. 

Bancroft,  F.,  Life  of  W.  H.  Seward,  New  York,  1900. 
Barclay,  Sir  Thomas,  Law  and  Usage  of  War,  Boston,  1914. 

xiii 


xiv  AUTHORITIES  CITED. 

Problems  of  International  Practice  and  Diplomacy,  London,  1907 

(Cited  Barclay,  Problems). 
The    Effect   of   the    Most-Favoured-Nation    Clause    in    Treaties, 

Yale  Law  Journal,  XVII,  26. 
Territorial  Waters,  27th  Report  of  the  International  Law  Asso- 


ciation,  81. 
Bar,  K.  L.  von,  The  Theory  and  Practice  of  Private  International  Law, 

Edinburgh,  1892. 

Barrett,   J.   Arthur,   Extradition   Treaties,   25th  Report   of   the   Inter- 
national Law  Association,  101. 
Basdevant,    J.,   La   Requisition    des   Navires   Allemands   en    Portugal, 

Revue  Generale  de  Droit  International,  XXIII,  268. 
Baty,  T.,  International  Law  in  South  Africa,  London,  1900. 

International  Law,  London,  1909. 

' — The  Declaration  of  London,  26th  Report  of  the   International 

Law  Association,  115. 
Intercourse  with  Alien  Enemies,  Law  Quarterly  Review,  XXXI, 

30. 
— Trade  Domicile  in  War,  Journal  of  the  Society  of  Comparative 

Legislation,  N.  S.  IX,  Part  I,  157,  X,  183. 
•Prize  Droits,  Law  Quarterly  Review,  XXXII,  38. 


Baty,  T.,  and  Morgan,  J.  H.,  War:      Ils  Conduct  and  Legal  Results, 

London,   1915. 
Beale,    Joseph    H.,   Jurisdiction   of   Courts   over   Foreigners,   Harvard 

Law  Review,  XXVI,  193,  283. 

—  A  Selection  of  Cases  on  the  Conflict  of  Laws,  Cambridge,  1900- 

1902. 
A  Treatise  on  the  Conflict  of  Laws  or  Private  International 


Law,  Cambridge,  1916. 

Bellot,  H.  H.  L.,  Sovereignty  of  the  Air,  International  Law  Notes, 
III,  133. 

Benton,  E.  J.,  International  Law  and  Diplomacy  of  the  Spanish-Amer- 
ican War,  Baltimore,  1908. 

Bentwich,  N.,  The  Declaration  of  London,  London,  1911. 

' — The  Law  of  Private  Property  in  War,  with  a  Chapter  on  Con- 
quest, London,  1907. 

Students  Leading  Cases  and  Statutes  on  International  Law, 

London,  1913. 

Bernard,  Montagu,  A  Historical  Account  of  the  Neutrality  of  Great 
Britain  during  the  American  Civil  War,  London,  1870. 

Bevilaqua,    C.,   Direito    Publico   Internacional,   Rio   de   Janeiro,    1911. 

Birkhimer,  W.  E.,  Military  Government  and  Martial  Law,  2nd  ed., 
Kansas  City,  1904. 

Blackstone,  Sir  Wm.,  Commentaries  on  the  Law  of  England,  Cooley, 
ed.,  Chicago,  1884. 

Bluntschli,  J.  K.,  Le  Droit  International  Codified  traduit  de  1'allemand 
par  C.  Lardy,  Paris,  1895. 

Bonfils,  H.,  Manuel  de  Droit  International  Public,  7th  ed,  par  Paul 
Fauchille,  Paris,  1914  (Cited  Bonfils  [Fauchille]) . 

Borchard,  E.  M.,  The  Diplomatic  Protection  of  Citizens  Abroad,  or  the 
Law  of  International  Claims,  New  York,  1915  (Cited  Borchard). 


AUTHORITIES  CITED.  xv 

The  North  Atlantic  Fisheries  Arbitration,  Columbia  Law  Re- 
view, XI,  1. 

Bordwell,  Percy,  Purchasable  Offices  in  Ceded  Territory,  Am.  Jour.  Int. 
Law,  III,  119. 

The  Law  of  War  between  Belligerents,  Chicago,  1908. 

Bouv6,  C.  L.,  A  Treatise  on  the  Laws  Governing  the  Exclusion  and 
Expulsion  of  Aliens  in  the  United  States,  Washington,  1912. 

British  Year  Book  of  International  Law,  1920-21,  1921-22,  London, 
1920,  1921. 

Brown,  H.  B.,  The  Proposed  International  Prize  Court,  Am.  Jour.  Int. 
Law,  II,  476. 

Brown,  P.  M.,  Foreigners  in  Turkey:  Their  Judicial  Status,  Prince- 
ton, 1914. 

Burchard,  A.,  The  Case  of  the  Appam,  Am.  Jour.  Int.  Law,  XI,  270. 

Burge,  W.,  Commentaries  on  Colonial  and  Foreign  Laws,  edited  by 
A.  W.  Renton  and  G.  G.  Phillimore,  London,  1907  seq. 

Butler,  B.  F.,  Butler's  Book,  Boston,  1892. 

Butler,  C.  H.,  The  Treaty-Making  Power  of  the  tfnited  States,  New 
York,  1902. 

Butler,  Sir  Geoffrey,  A  Handbook  of  the  League  of  Nations,  with  an 
Introduction  by  Lord  Robert  Cecil,  London,  1919. 

Callahan,  J.  M.,  Diplomatic  History  of  the  Southern  Confederacy, 
Baltimore,  1901. 

Callieres,  F.  de,  The  Practice  of  Diplomacy,  London,  1919. 

Calvo,  C.,  Le  Droit  International  Th§orique  et  Pratique,  5th  ed.,  Paris, 
1896  (Cited  Calvo). 

Camden,  W.,  Annales  Rerum  Anglicarum  et  Hibernicarum  Regnante 
Elizabetha,  London,  1615. 

Campbell,  H.,  The  Law  of  War  and  Contract.     London,  1918. 

Campbell,  R.  G.,  Neutral  Rights  and  Obligations  in  the  Anglo-Boer 
War,  Baltimore,  1908. 

Charteris,  A.  H.,  Recent  International  Disputes  regarding  Territorial 
Bays,  27th  Report  of  the  International  Law  Association,  107. 

— i Territorial  Jurisdiction  in  Wide  Bays,  23rd  Report  of  the  Inter- 
national Law  Association,  103. 

The  Legal  Position  of  Merchantmen  in  Foreign  Ports  and 

National  Waters,  British  Year  Book  of  International  Law,  1920-21, 
45. 

Clark,  J.  R.,  The  Nature  and  Definition  of  Political  Offense  in  Inter- 
national Extradition,  Proceedings  of  American  Society  of  In- 
ternational Law,  1909,  95. 

Clarke,  Sir  E.  G.,  A  Treatise  upon  the  Law  of  Extradition,  4th  ed., 
London,  1903. 

Cobbett,  Pitt,  Cases  and  Opinions  on  International  Law,  vol.  I,  4th  ed., 
London,  1922,  vol.  II,  London,  1913  (Cited  Cobbett,  Cases  and  Opin- 
ions). 

Cohen,  A.,  The  Declaration  of  London,  London,  1911. 

Columbia  Law  Review. 


xvi  AUTHORITIES  CITED. 

Coudert,  F.  R.,  The  Nature  and  Definition  of  Political  Offense  in  Inter- 
national Extradition,  Proceedings  of  the  American  Society  of 
International  Law  for  1909,  124. 

— The  Appam  Case,  Am.  Jour.  Int  Law,  XI,  302. 

Crandall,  S.  B.,  Treaties:  Their  Making  and  Enforcement,  2d  ed., 
Washington,  1916. 

Creasy,  Sir  E.  S.,  First  Platform  of  International  Law,  London,  1876. 

Crocker,  H.  G.,  The  Extent  of  the  Marginal  Sea,  Washington,  1919. 

Curtis,  R.  E.,  The  Law  of  Hostile  Military  Expeditions  as  Applied  by 
the  United  States,  Am.  Jour.  Int.  Law,  VIII,  1,  224. 

Gushing,  C.,  The  Treaty  of  Washington,  New  York,  1873. 

Cyclopedia  of  Law  and  Procedure,  New  York,  1901-1912. 

Decisions  du  Conseil  des  Prises  et  Decrets  Rendus  en  Conseil  d'fitat 

en  Matiere  de  Prises  Maritimes,  Paris,  1916. 
Darby,  W.  Evans,  International  Arbitration,  International  Tribunals, 

4th  ed.,  London,  1904. 
Davis,  J.  C.  Bancroft,  Treaty  Notes  in  United  States  Treaty  Volume, 

1776-1887,  Washington,  1889. 
Dicey,  A.   V.,  The  Conflict  of  Laws,  with  Notes   of  American  Cases 

by  J.  B.  Moore,  London,  1896. 

Dickinson,  E.  D.,  The  Equality  of  States  in  International  Law,  Cam- 
bridge, 1920. 
Diena,  G.,  Le  Jugement  du  Conseil  des  Pjises  d'ltalie  dans  1'Affaire  du 

"Doelwijk,"   Journal   du   Droit   International   PrivS,   XXIV,   268. 
Duggan,  S.  P.,  The  League  of  Nations;  the  Principle  and  the  Practice, 

New  York,  1920. 

Elliott,  C.  B.,  The  Doctrine  of  Continuous  Voyages,  Am.  Jour.  Int 

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Story,  Joseph,  Commentaries  on  the  Conflict  of  Laws,  8th  ed.  by  Mel- 
ville M.  Bigelow,  Boston,  1883   (Cited  Story,  Conflicts). 
Story,  W.  W.,  Life  and  Letters  of  Joseph  Story,  Boston,  1851. 
Stowell,  E.  C.,  Consular  Cases  and  Opinions,  Washington,  1909. 

—  Le  Consul,  Paris,  1909. 
Struycken,  A.  A.  H.,  Des  Droits  de  1'Individu  en  Matiere  d'Extradi- 

tion,     International    Law    Association,     Twenty-seventh     Report 

(1912),  139. 

Takahashi,  S.,  Cases  on  International  Law  during  the  Chino-Japanese 

War,  Cambridge,  1899. 
— International    Law   Applied   to   the   Russo-Japanese   War,    New 

York,  1908  (Cited,  Takahashi). 
Le    Droit   International    dans   1'Histoire   du   Japon,   Revue    de 


Droit  International,  2nd  Series,  III,  188. 
Temperley,  H.  W.  V.,  The  History  of  the  Peace  Conference  of  Paris, 

London,  1920-21. 

Thayer,  J.  B.,  Legal  Essays,  Boston,  1908. 
Tiverton,  Viscount,  The  Principles  and  Practice  of  Prize  Law,  London, 

1914. 


xxiv  AUTHORITIES  CITED. 

Thiesing,  T.,  Trading  with  the  Enemy,  Sen.  Doc.  107,  65th  Congress, 

1st  Session. 
Transvaal    Concession    Commission,    Report    of,    Blue    Book,    Soath 

Africa,  June,  1901,  London,  1901. 
Travers,   M.,  Le  Droit  Penal   International  et  sa  Mise  en  Oeuvre  en 

Temps  de  Paix  et  en  Temps  de  Guerre,  Paris,  1920,  1921. 
Trotter,  W.  F.,  The  Law  of  Contract  During  and  After  War,  third 

edition,  London  and  Edinburgh,  1919. 
Tupper,  C.  L.,  Our  Indian  Protectorate,  London,  1893. 
Twiss,  Sir  Travers,  The  Law  of  Nations  Considered  as  Independent 

Political   Communities,    2nd    ed.,   Oxford,   1884. 

The  Oregon  Question,  London,  1846. 

Tyau,  M.  T.  Z.,  The  Legal  Obligations  Arising  out  of  Treaty  Relations 

between  China  and  Other  States,  Shanghai,  1917. 
Exterritoriality   in   China  and    the   Question   of   its   Abolition, 

British    Year    Book    of    International    Law,    1921-22,    133. 

United  States  Tariff  Commission,  Reciprocity  and  Commercial  Treaties, 
Washington,  1919. 

Vanderpol,  A.,  La  Doctrine  Scholastique  du  Droit  de  Guerre,  Paris, 

1919. 
Visser,  M.  L.-E.,  La  Clause  de  "la  Nation  la  plus  Favoris6e"  dans  les 

Trait6s  de  Commerce,  Revue  de  Droit  International,  2nd  Series, 

IV,  66,  159,  270. 

Walton,  F.  P.,  State  Immunity  in  the  Laws  of  England,  France,  Italy 

and  Belgium,  Journal  of  the  Society  of  Comparative  Legislation 

and  International  Law,  3rd  Series,  II,  252. 
Wambaugh,  E.,  Littleton's  Tenures,  Washington,  1903. 
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by  L.  Oppenheim,  Cambridge,  1914  (Cited  Collected  Papers). 
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Revue  de  Droit  International,  2nd  Series,  X,  5. 
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AUTHORITIES  CITED.  xxv 

Willoughby,  W.  W.,  The  Legal  Nature  of  International  Law,  Am.  Jour. 

Int.   Law,  II,  357. 

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Willson,   W.   R.,   Insurance  of   Foreign   Property   in  War   Time,   Law 

Quarterly  Review,  XXXII,  373,  XXXIII,  15. 
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Law,  I,  46. 
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Wolfman,  M.,  Sovereigns  as  Defendants,  Am.  Jour.  Int.  Law,  IV,  373. 

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Am.  Jour.  Int.  Law,  IV,  823. 

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• 


Leading  Cases 

on 
International  Law 


CHAPTER  I. 

THE  NATURE  AND  AUTHORITY  OF  INTERNATIONAL 

LAW. 

SECTION  1.    THE  NATURE  AND  SOURCES  OF  INTERNATIONAL  LAW. 

UNITED  STATES  v.  THE  SCHOONER  LA  JEUNE 
EUGENIE. 

CIRCUIT  COUET  OF  THE  UNITED  STATES.     1822. 
2  Mason,  409. 

STORY,  J.  This  is  a  libel  brought  against  the  schooner  La 
Jeune  Eugenie,  which  was  seized  by  Lieut.  Stockton,  on  the 
coast  of  Africa,  for  being  employed  in  the  slave  trade.  The  alle- 
gation asserts  the  offense  in  two  forms ;  first,  as  against  the  slave 
trade  acts  of  the  United  States;  and  secondly,  as  against  the 
general  law  of  nations.  A  claim  has  been  given  in  by  the  French 
consul,  in  behalf  of  the  Claimants,  who  are  subjects  of  France, 
resident  in  Basseterre,  in  the  island  of  Guadaloupe,  as  owners 
of  the  schooner;  and  there  is  also  a  Protest  filed  by  the  French 
consul  against  the  jurisdiction  of  the  court,  upon  the  ground, 
that  this  is  a  French  vessel,  owned  by  French  subjects,  and  as 
such,  exclusively  liable  to  the  jurisdiction  of  the  French  tribunals, 
if  she  shall  turn  out,  upon  the  evidence,  to  have  been  engaged  in 
this  dishonorable  traffic.  It  is  contended  on  behalf  of 


2  NATURE  OF  INTERNATIONAL  LAW. 

the  plaintiffs,  that  this  court  has  a  right  to  entertain  jurisdic- 
tion, and  is  bound  to  reject  the  claim  of  the  defendants ;  First, 
because  the  African  Slave  Trade  is  repugnant  to  the  law  of  na- 
tions; Secondly,  because  it  is  prohibited  by  the  municipal  laws 
of  France.  On  the  other  side  it  is  contended,  that  the  trade  is 
not  repugnant  to  the  law  of  nations;  and  if  prohibited  by  the 
laws  of  France,  it  is  a  municipal  regulation,  which  the 
tribunals  of  France  are  alone  competent  to  inquire  into  and 
punish.  .  .  . 

I  shall  take  up  no  time  in  the  examination  of  the  history  of 
slavery,  or  of  the  question,  how  far  it  is  consistent  with  the 
natural  rights  of  mankind.  That  it  may  have  a  lawful  exist- 
ence, at  least  by  way  of  punishment  for  crimes,  will  not  be 
doubted  by  any  persons,  who  admit  the  general  rights  of  society 
to  enforce  the  observance  of  its  laws  by  adequate  penalties. 
.  .  .  That  it  has  interwoven  itself  into  the  municipal  insti- 
tutions of  some  countries,  and  forms  the  foundation  of  large 
masses  of  property  in  a  portion  of  our  own  country,  is  known 
to  all  of  us.  ...  It  would  be  unbecoming  in  me  here  to 
assert,  that  the  state  of  slavery  cannot  have  a  legitimate  exist- 
ence, or  that  it  stands  condemned  by  the  unequivocal  testimony 
of  the  law  of  nations. 

But  this  concession  carries  us  but  a  very  short  distance  to- 
wards the  decision  of  this  cause.  It  is  not,  as  the  learned  counsel 
for  the  government  have  justly  stated,  on  account  of  the  simple 
fact,  that  the  traffic  necessarily  involves  the  enslavement  of 
human  beings,  that  it  stands  reprehended  by  the  present  sense 
of  nations ;  but  that  it  necessarily  carries  with  it  a  breach  of  all 
the  moral  duties,  of  all  the  maxims  of  justice,  mercy  and  human- 
ity, and  of  the  admitted  rights,  which  independent  Christian 
nations  now  hold  sacred  in  their  intercourse  with  each  other. 
.  .  .  It  is  of  this  traffic  in  the  aggregate  of  its  accumulated 
wrongs,  that  I  would  ask,  if  it  be  consistent  with  the  law  of 
nations?  It  is  not  by  breaking  up  the  elements  of  the  case  into 
fragments,  and  detaching  them  one  from  another,  that  we  are  to 
be  asked  of  each  separately,  if  the  law  of  nations  prohibits  it. 
We  are  not  to  be  told,  that  war  is  lawful,  and  slavery  lawful, 
and  plunder  lawful,  and  the  taking  away  of  life  is  lawful,  and 
the  selling  of  human  beings  is  lawful.  Assuming  that  they  are 
so  under  circumstances,  it  establishes  nothing.  It  does  not  ad- 
vance one  jot  to  the  support  of  the  proposition,  that  a  traffic, 
that  involves  them  all,  that  is  unnecessary,  unjust,  and  inhuman, 


UNITED  STATES  v.  LA  JEUNE  EUGENIE.  3 

is  countenanced  by  the  eternal  law  of  nature,  on  which  rests 
the  law  of  nations. 

Now  the  law  of  nations  may  be  deduced,  first,  from  the  gen- 
eral principles  of  right  and  justice,  applied  to  the  concerns  of 
individuals,  and  thence  to  the  relations  and  duties  of  nations; 
or,  secondly,  in  things  indifferent  or  questionable,  from  the  cus- 
tomary observances  and  recognitions  of  civilized  nations;  or, 
lastly,  from  the  conventional  or  positive  law,  that  regulates  the 
intercourse  between  states.  "What,  therefore,  the  law  of  nations 
is,  does  not  rest  upon  mere  theory,  but  may  be  considered  as 
modified  by  practice,  or  ascertained  by  the  treaties  of  nations 
at  different  periods.  It  does  not  follow,  therefore,  that  because 
a  principle  cannot  be  found  settled  by  the  consent  or  practice 
of  nations  at  one  time,  it  is  to  be  concluded,  that  at  no  subse- 
quent period  the  principle  can  be  considered  as  incorporated 
into  the  public  code  of  nations.  Nor  is  it  to  be  admitted,  that 
no  principle  belongs  to  the  law  of  nations,  which  is  not  univer- 
sally recognized,  as  such,  by  all  civilized  communities,  or  even 
by  those  constituting,  what  may  be  called,  the  Christian  states 
of  Europe.  Some  doctrines,  which  we,  as  well  as  Great  Britain, 
admit  to  belong  to  the  law  of  nations,  are  of  but  recent  origin 
and  application,  and  have  not,  as  yet,  received  any  public  or 
general  sanction  in  other  nations ;  and  yet  they  are  founded  in 
such  a  just  view  of  the  duties  and  rights  of  nations,  belligerent 
and  neutral,  that  we  have  not  hesitated  to  enforce  them  by  the 
penalty  of  confiscation.  There  are  other  doctrines,  again,  which 
have  met  the  decided  hostility  of  some  of  the  European  states, 
enlightened  as  well  as  powerful,  such  as  the  right  of  search,  and 
the  rule,  that  free  ships  do  not  make  free  goods,  which,  never- 
theless, both  Great  Britain  and  the  United  States  maintain,  and 
in  my  judgment  with  unanswerable  arguments,  as  settled  rules 
in  the  Law  of  Prize,  and  scruple  not  to  apply  them  to  the  ships 
of  all  other  nations.  And  yet,  if  the  general  custom  of  nations 
in  modern  times,  or  even  in  the  present  age,  recognized  an  op- 
posite doctrine,  it  could  not,  perhaps,  be  affirmed,  that  that 
practice  did  not  constitute  a  part,  or,  at  least,  a  modification,  of 
the  law  of  nations. 

But  I  think  it  may  be  unequivocally  affirmed,  that  every  doc- 
trine, that  may  be  fairly  deduced  by  correct  reasoning  from  the 
rights  and  duties  of  nations,  and  the  nature  of  moral  obligation, 
may  theoretically  be  said  to  exist  in  the  law  of  nations;  and 
unless  it  be  relaxed  or  waived  by  the  consent  of  nations,  which 


4  NATURE  OF  INTERNATIONAL  LAW. 

may  be  evidenced  by  their  general  practice  and  customs,  it  may 
be  enforced  by  a  court  of  justice,  whenever  it  arises  in  judgment. 
And  I  may  go  farther  and  say,  that  no  practice  whatsoever  can 
obliterate  the  fundamental  distinction  between  right  and  wrong, 
and  that  every  nation  is  at  liberty  to  apply  to  another  the  cor- 
rect principle,  whenever  both  nations  by  their  public  acts  recede 
from  such  practice,  and  admit  the  injustice  or  cruelty  of  it. 

Now  in  respect  to  the  African  slave  trade,  such  as  it  has  been 
described  to  be,  and  in  fact  is,  in  its  origin,  progress,  and  con- 
summation, it  cannot  admit  of  serious  question,  that  it  is  founded 
in  a  violation  of  some  of  the  first  principles,  which  ought  to 
govern  nations.  It  is  repugnant  to  the  great  principles  of  Chris- 
tian duty,  the  dictates  of  natural  religion,  the  obligations  of 
good  faith  and  morality,  and  the  eternal  maxims  of  social  jus- 
tice. When  any  trade  can  be  truly  said  to  have  these  ingre- 
dients, it  is  impossible  that  it  can  be  consistent  with  any  system 
of  law,  that  purports  to  rest  on  the  authority  of  reason  or 
revelation.  And  it  is  sufficient  to  stamp  any  trade  as  inter- 
dicted by  public  law,  when  it  can  be  justly  affirmed,  that  it  is 
repugnant  to  the  general  principles  of  justice  and  humanity. 

Now  there  is  scarcely  a  single  maritime  nation  of  Europe,  that 
has  not  in  the  most  significant  terms,  in  the  most  deliberate  and 
solemn  conferences,  acts,  or  treaties,  acknowledged  the  injustice 
and  inhumanity  of  this  trade ;  and  pledged  itself  to  promote  its 
abolition.  .  .  .  Our  own  country,  too,  has  firmly  and  ear- 
nestly pressed  forward  in  the  same  career.  ...  At  the 
present  moment  the  traffic  is  vindicated  by  no  nation,  and  is 
admitted  by  almost  all  commercial  nations  as  incurably  unjust 
and  inhuman.  It  appears  to  me,  therefore,  that  in  an  American 
court  of  judicature,  I  am  bound  to  consider  the  trade  an  offense 
against  the  universal  law  of  society,  and  in  all  cases  where  it  is 
not  protected  by  a  foreign  government,  to  deal  with  it  as  an 
offense  carrying  with  it  the  penalty  of  confiscation.  .  .  . 

There  is  an  objection  urged  against  the  doctrine,  which  is 
here  asserted,  that  ought  not  to  be  passed  over  in  silence;  and 
that  is,  if  the  African  slave  trade  is  repugnant  to  the  law  of  na- 
tions, no  nation  can  rightfully  permit  its  subjects  to  carry  it  on, 
or  exempt  them  from  obedience  to  that  law ;  for  it  is  said,  that  no 
nation  can  privilege  itself  to  commit  a  crime  against  the  law  of 
nations  by  a  mere  municipal  regulation  of  its  own.  In  a  sense 
the  proposition  is  true,  but  not  universally  so.  No  nation  has  a 
right  to  infringe  the  law  of  nations,  so  as  thereby  to  produce  an 


THE  SCOTIA.  5 

injury  to  any  other  nation.  But  if  it  does,  this  is  understood  to 
be  an  injury,  not  against  all  nations,  which  all  are  bound  or 
permitted  to  redress;  but  which  concerns  alone  the  nation 
injured.  The  independence  of  nations  guarantees  to  each  the 
right  of  guarding  its  own  honour,  and  the  morals  and  interests 
of  its  own  subjects.  No  one  has  a  right  to  sit  in  judgment 
generally  upon  the  actions  of  another;  at  least  to  the  extent  of 
compelling  its  adherence  to  all  the  principles  of  justice  and 
humanity  in  its  domestic  concerns.  If  a  nation  were  to  violate 
as  to  its  own  subjects  in  its  domestic  regulation  the  clearest 
principles  of  public  law,  I  do  not  know,  that  that  law  has  ever 
held  them  amenable  to  the  tribunals  of  other  nations  for  such 
conduct.  It  would  be  inconsistent  with  the  equality  and  sover- 
eignty of  nations,  which  admit  no  common  superior.  No  nation 
has  ever  yet  pretended  to  be  the  custos  morum  of  the  whole 
world;  and  though  abstractedly  a  particular  regulation  may 
violate  the  law  of  nations,  it  may  sometimes,  in  the  case  of 
nations,  be  a  wrong  without  a  remedy.  .  .  . 

I  have  come  to  the  conclusion,  that  the  slave  trade  is  a  trade 
prohibited  by  universal  law,  and  by  the  law  of  France,  and  that, 
therefore,  the  claim  of  the  asserted  French  owners  must  be 
rejected.  That  claim  being  rejected,  I  feel  myself  at  perfect 
liberty,  with  the  express  consent  of  our  own  government,  to  de- 
cree, that  the  property  be  delivered  over  to  the  consular  agent 
of  the  King  of  France,  to  be  dealt  with  according  to  his  own 
sense  of  duty  and  right.  .  .  . 


THE  SCOTIA. 

SUPREME  COURT  OF  THE  UNITED  STATES.     1872. 
14  Wallace,  170. 

Appeal  from  the  Circuit  Court  for  the  Southern  District  of 
New  York. 

[In  1863  the  British  government  adopted  a  series  of  regula- 
tions for  preventing  collisions  at  sea.  In  1864  the  American 
Congress  adopted  practically  the  same  regulations.  Within  a 
short  time  the  governments  of  almost  all  maritime  countries  indi- 
cated their  willingness  that  the  British  regulations  should  apply 
to  their  ships  when  outside  British  jurisdiction.  In  this  state 


6  NATURE  OF  INTERNATIONAL  LAW. 

of  the  law,  the  Scotia,  a  British  steamer,  collided  in  mid-ocean 
with  the  Berkshire,  an  American  sailing  ship,  and  the  latter  was 
sunk.  The  owners  of  the  Berkshire  filed  their  libel  in  the  United 
States  District  Court  in  New  York,  alleging  that  the  collision 
occurred  through  the  fault  of  the  Scotia,  and  arguing  that  the 
respective  rights  and  duties  of  the  two  vessels  were  determined 
by  the  general  maritime  law  as  it  existed  before  the  British 
legislation  of  1863  which  had  been  adopted  by  practically  all 
maritime  nations.  The  District  Court  dismissed  the  libel,  and 
the  Circuit  Court  having  affirmed  that  decree  an  appeal  was 
taken  to  this  court.] 

Mr.  Justice  STRONG  delivered  the  opinion  of  the  court.    .    .    . 

It  must  be  conceded,  however,  that  the  rights  and  merits  of 
a  case  may  be  governed  by  a  different  law  from  that  which 
controls  a  court  in  which  a  remedy  may  be  sought.  The  ques- 
tion still  remains,  what  was  the  law  of  the  place  where  the  col- 
lision occurred,  and  at  the  time  when  it  occurred.  Conceding 
that  it  was  not  the  law  of  the  United  States,  nor  that  of  Great 
Britain,  nor  the  concurrent  regulations  of  the  two  governments, 
but  that  it  was  the  law  of  the  sea,  was  it  the  ancient  maritime 
law,  that  which  existed  before  the  commercial  nations  of  the 
world  adopted  the  regulations  of  1863  and  1864,  or  the  law 
changed  after  those  regulations  were  adopted?  Undoubtedly, 
no  single  nation  can  change  the  law  of  the  sea.  That  law  is  of 
universal  obligation,  and  no  statute  of  one  or  two  nations  can 
create  obligations  for  the  world.  Like  all  the  laws  of  nations,  it 
rests  upon  the  common  consent  of  civilized  communities.  It  is 
of  force,  not  because  it  was  prescribed  by  any  superior  power, 
but  because  it  has  been  generally  accepted  as  a  rule  of  conduct. 
"Whatever  may  have  been  its  origin,  whether  in  the  usages  of 
navigation  or  in  the  ordinances  of  maritime  states,  or  in  both,  it 
has  become  the  law  of  the  sea  only  by  the  concurrent  sanction 
of  those  nations  who  may  be  said  to  constitute  the  commercial 
world.  Many  of  the  usages  which  prevail,  and  which  have  the 
force  of  law,  doubtless  originated  in  the  positive  prescriptions 
of  some  single  state,  which  were  at  first  of  limited  effect,  but 
which  when  generally  accepted  became  of  universal  obligation. 
The  Rhodian  law  is  supposed  to  have  been  the  earliest  system 
of  marine  rules.  It  was  a  code  for  Rhodians  only,  but  it  soon 
became  of  general  authority  because  accepted  and  assented  to 
as  a  wise  and  desirable  system  by  other  maritime  nations.  The 


THE  SCOTIA.  7 

same  may  be  said  of  the  Amalphitan  table,  of  the  ordinances  of 
the  Hanseatic  League,  and  of  parts  of  the  marine  ordinances  of 
Louis  XIV.  They  all  became  the  law  of  the  sea,  not  on  account 
of  their  origin,  but  by  reason  of  their  acceptance  as  such.  And 
it  is  evident  that  unless  general  assent  is  efficacious  to  give  sanc- 
tion to  international  law,  there  never  can  be  that  growth  and 
development  of  maritime  rules  which  the  constant  changes  in  the 
instruments  and  necessities  of  navigation  require.  Changes  in 
nautical  rules  have  taken  place.  How  have  they  been  accom- 
plished, if  not  by  the  concurrent  assent,  express  or  understood,  of 
maritime  nations?  When,  therefore,  we  find  such  rules  of  navi- 
gation as  are  mentioned  in  the  British  orders  in  council  of  Janu- 
ary 9th,  1863,  and  in  our  act  of  Congress  of  1864,  accepted  as 
obligatory  rules  by  more  than  thirty  of  the  principal  commercial 
states  of  the  world,  including  almost  all  which  have  any  ship- 
ping on  the  Atlantic  Ocean,  we  are  constrained  to  regard  them 
as  in  part  at  least,  and  so  far  as  relates  to  these  vessels,  the  laws 
of  the  sea,  and  as  having  been  the  law  at  the  time  when  the  col- 
lision of  which  the  libellants  complain  took  place. 

This  is  not  giving  to  the  statutes  of  any  nation  extraterritorial 
effect.  It  is  not  treating  them  as  general  maritime  laws,  but  it  is 
recognition  of  the  historical  fact  that,  by  common  consent  of 
mankind,  these  rules  have  been  acquiesced  in  as  of  general  obli- 
gation. Of  that  fact  we  think  we  may  take  judicial  notice. 
Foreign  municipal  laws  must  indeed  be  proved  as  facts,  but  it  is 
not  so  with  the  law  of  nations. 

The  consequences  of  this  ruling  are  decisive  of  the  case  before 
us.  The  violation  of  maritime  law  by  the  Berkshire  in  carrying 
a  white  light  (to  say  nothing  of  her  neglect  to  carry  colored 
lights),  and  her  carrying  it  on  deck  instead  of  at  her  masthead, 
were  false  representations  to  the  Scotia.  They  proclaimed  that 
the  Berkshire  was  a  steamer,  and  such  she  was  manifestly  taken 
to  be.  The  movements  of  the  Scotia  were  therefore  entirely 
proper,  and  she  was  without  fault. 

Decree  affirmed,  with  costs. 


8  NATURE  OF  INTERNATIONAL  LAW. 

FRANCIS  DAINESE  v.  THE  UNITED  STATES. 

COUBT  or  CLAIMS  OF  THE  UNITED   STATES.    1880. 
15  Ct.  a.  64. 

[The  claimant,  an  Austrian  subject  domiciled  in  Turkey,  was 
appointed  by  the  American  consul  at  Constantinople  to  act  as 
vice-consul.  The  American  Legation  in  Constantinople  recog- 
nized him  as  such  and  the  Department  of  State  transacted  busi- 
ness with  him  in  that  capacity.  He  now  sues  to  recover  pay  for 
the  judicial  duties  which  he  performed  as  a  consular  officer  and 
which  were  imposed  upon  him  by  the  treaty  of  May  7,  1830 
between  the  United  States  and  the  Ottoman  Porte.] 

DAVIS,  J.,  delivered  the  opinion  of  the  court : 

This  is  an  action  to  recover  salary.  The  claimant  contends 
that  he  was  a  duly  appointed  consular  officer  of  the  United 
States,  although  not  a  citizen  thereof  at  the  period  sued  for, 
and  that  by  reason  of  having  had  judicial  duties  imposed  upon 
him  he  became  entitled  to  the  extra  pay  allowed  by  the  Act 
August  14,  1848  (9  Stat,  L.,  276),  to  certain  consuls  performing 
such  duties.  .  .  . 

The  Attorney-General  .  .  .  calls  attention  to  a  difference 
between  the  United  States  and  the  Ottoman  Porte  as  to  the  con- 
struction of  the  treaty  of  1830,  which  he  contends  is  a  question 
for  the  political  department  of  the  government.  He  maintains 
that  it  is  necessarily  involved  in  the  exercise  of  jurisdiction  in 
this  case,  and  that,  therefore,  we  should  stop  at  the  threshold. 

The  fourth  article  of  that  treaty,  as  printed  in  the  Statutes  at 
Large,  provides  that  when  American  citizens  within  the  domin- 
ions of  the  Ottoman  Porte  may  have  committed  some  offense 
they  shall  not  be  arrested  and  put  in  prison  by  the  local  authori- 
ties, but  they  shall  be  tried  by  their  minister  or  consul  and  pun- 
ished according  to  their  offense,  following,  in  this  respect,  the 
usages  towards  other  Franks.  (8  Stat.  L.,  409.)  The  Turkish 
Government  denies  the  authenticity  of  the  English  text,  and 
claims  that  the  terms  of  the  original  Turkish  text,  which,  they 
say,  was  accepted  by  the  American  negotiator  to  be  strictly  ob- 
served on  all  occasions,  does  not  affect  the  rights  of  the  Turkish 
Government  with  respect  to  the  preventive  arrest  and  holding 
in  custody  of  foreign  subjects  during  criminal  proceedings  of 
v.'hich  they  may  be  the  objects,  and  that  it  accords  to  Americans 


DAINESE  v.  UNITED  STATES.  9 

the  same  privilege  which  the  subjects  of  other  powers  already 
enjoyed,  viz,  as  they  say,  the  leaving  to  the  minister  or  consul 
the  execution  of  the  punishments  to  which  Americans  may  be 
condemned  in  case  of  crimes  or  offenses.  (United  States  Con- 
sular Eegulations,  ed.  1870,  pp.  192,  193.) 

The  "usages  of  the  Franks"  begin  in  what  are  known  in  in- 
ternational law  as  "the  capitulations,"  granting  rights  of  ex- 
territoriality to  Christians  residing  or  traveling  in  Mohammedan 
countries.  Some  ingenious  writers  attempt  to  trace  these  capit- 
ulations far  back  of  the  capture  of  Constantinople  in  1453  by 
the  Turks.  (1  Feraud-Giraud,  Juridiction  Frangaise  dans  les 
fickelles,  29  et  seq.)  They  are  undoubtedly  rooted  in  the  radi- 
cal distinction  between  Mohammedanism,  which  acknowledges 
the  Koran  as  the  only  source  of  human  legislation  and  the  only 
law  for  the  government  of  human  affairs,  and  the  western  sys- 
tems of  jurisprudence,  which  are  animated  by  the  equitable  and 
philosophical  principles  of  Roman  law  and  Christian  civilization. 
But  their  accepted  foundation  in  international  law  is  in  the 
treaty  made  with  the  French  in  1535,  which  guaranteed  that 
French  consuls  and  ministers  might  hear  and  determine  civil 
and  criminal  causes  between  Frenchmen  without  the  interfer- 
ence of  a  Cadi  or  any  other  person.  (1  De  Testa,  16.)  After 
this  treaty  the  French  took  under  their  protection  persons  of 
other  nationalities  not  represented  by  consuls  (2  Feraud-Gi- 
raud, 76),  and  hence  the  generic  name  of  "Franks"  was  given 
to  all  participants  in  the  privileges,  and  has  been  preserved  in 
the  laws,  treaties,  and  public  documents  of  the  United  States. 
(8  Stat.  L.,  409;  12  Sta't.  L.,  76,  §  21;  7  Op.  Attys.  Gen.,  568.) 

Other  nations  followed  the  examples  thus  set  by  the  French, 
as,  for  instance,  the  English  in  1675  (Brit.  &  For.  St.  Pap., 
1812- '14,  Part  I,  750)  ;  the  Two  Sicilies  in  1740  (1  Wenekius, 
522)  ;  Spain  in  1782  (3  Martin's  Rec.,  2d  ed.,  405)  ;  and  the 
United  States  in  1830  (8  Stat.  L.,  408).  All  writers  agree  that 
by  these  and  other  similar  capitulations  a  usage  was  established 
that  Franks,  being  in  Turkey,  whether  domiciled  or  temporarily, 
should  be  under  the  jurisdiction,  civil  and  criminal,  of  their  re- 
spective ministers  and  consuls.  This  usage,  springing  thus  not 
only  out  of  the  capitulations,  but  out  of  the  "very  nature  of 
Mohammedanism"  (3  Phil.,  preface,  iv),  became  a  part  of  the 
international  law  of  Europe.  .  .  . 

In  the  case  of  Triquet  v.  Bath  (3  Burrows,  1478),  which  was 
argued  by  Blackstone,  Thurlow,  and  Dunning,  and  decided  in 


10  NATURE  OF  INTERNATIONAL  LAW. 

1764  by  the  King's  Bench,  Lord  Mansfield  giving  the  opinion, 
it  was  held  to  be  beyond  doubt  that  the  law  of  nations  is  part 
of  the  common  law  of  England;  and  that  it  is  to  be  collected 
from  the  practice  of  different  nations  and  from  the  authority  of 
writers.  Blackstone  incorporated  this  doctrine  into  his  com- 
mentaries (Bl.  Com.,  Book  4,  ch.  5),  which  were  first  published 
soon  after  the  decision  was  rendered.  (See  also  Novello  v.  Too- 
good,  1  B.  &  C.,  562.) 

That  the  law  of  nations  forms  part  of  our  inheritance  is  a  fa- 
miliar doctrine,  recognized  by  the  highest  tribunal.  (30  Hogs. 
Sugar  v.  Boyle,  9  Cranch,  191.)  The  political  department  of  the 
government  has  also  uniformly  insisted  that  persons  under  the 
protection  of  the  United  States  shall  enjoy  in  foreign  lands  all 
the  rights,  privileges,  and  immunities  to  which  the  law  of  na- 
tions entitles  any  foreigner.  (Martin  Kosta's  Case  and  many 
others.)  Attorney- General  Gushing,  applying  this  doctrine, 
held  it  to  be  undoubted  that  all  Franks  were  absolutely  ex- 
empted, in  controversies  among  themselves,  from  the  local  juris- 
diction of  the  Porte  (7  Op.  Attys.  Gen.,  568),  and  the  Supreme 
Court  has"  recognized  the  general  doctrine  that  consuls  in  Mo- 
hammedan countries  are  clothed  with  judicial  powers,  as  part  of 
the  public  law  of  the  United  States.  (Mahoney  v.  The  United 
States,  10  Wall.,  66.)  .  .  . 

In  view  of  all  this,  while  we  refrain  from  considering  which 
text  of  the  treaty  of  1830  is  valid  in  our  international  relations, 
or  what  is  the  true  construction  of  either  text,  we  can  have  no 
doubt  that,  at  the  time  of  the  claimant's  alleged  service,  a  con- 
sular office  in  Turkey  was  regarded  as  calling  for  the  possible 
exercise  of  judicial  functions.  This  may  have  been  an  element 
in  influencing  appointments,  and  a  motive  in  inducing  the  ac- 
ceptance of  office.  When  a  treaty,  after  acceptance  by  the 
Senate  and  exchange  of  ratifications,  is  promulgated  in  a  given 
text  which,  so  far  as  it  relates  to  a  general  principle  of  public 
law,  is  in  harmony  with  the  opinion  of  all  publicists,  and  the 
legislature  creates  an  office  for  the  performance  of  quasi-inter- 
national duties  under  that  treaty  and  attaches  a  salary  to  it,  and 
the  President  duly  fills  the  office,  and  the  incumbent  takes  pos- 
session of  it,  the  latter  is  entitled  to  the  salary,  irrespective  of 
any  diplomatic  question  as  to  the  construction  or  validity  of 
the  treaty.  .  .  . 

[The  court  found  that  the  claimant  had  not  been  duly  in- 
vested with  the  office  of  vice-consul.] 


THE  PROMETHEUS.  11 

IN  THE  MATTER  OF  AN  ARBITRATION  BETWEEN  THE 

OSAKA  SHOSEN  KAISHA  AND  THE  OWNERS 

OF    THE    STEAMSHIP    PROMETHEUS. 

SUPREME  COURT  OF  HONG-KONG.    1906. 
2  Hong-Kong  Law  Reports,  217. 

[On  February  10,  1904,  the  Osaka  Shosen  Kaisha,  a  Japanese 
steamship  company,  and  the  agents  of  the  owners  of  the  Norwe- 
gian steamship  Prometheus  signed  a  charter-party  at  Hong- 
Kong  by  which  the  steamship  Prometheus  was  chartered  to  the 
Japanese  company  for  six  months.  By  clause  37  of  the  contract 
it  was  expressly  agreed  that  "in  case  of  war  steamer  not  to  be 
directed  to  any  blockaded  port  nor  to  carry  any  contraband  of 
war."  When  the  charter-party  was  signed,  hostilities  had  al- 
ready broken  out  between  Russia  and  Japan,  but  this  was  not 
known  to  the  signers  of  the  contract,  which  however  was  made 
in  anticipation  of  war.  On  February  14,  the  government  of 
Russia  published  the  list  of  articles  which  it  declared  to  be  con- 
traband, which  list  concluded  with  the  words,  "In  general,  all 
articles  intended  for  war,  on  sea  or  land,  such  as  rice,  provisions, 
horses,  beasts  of  burden  and  others  which  can  be  of  use  in  war, 
if  they  are  carried  for  an  enemy  or  to  an  enemy  destination." 
While  the  Prometheus  was  at  Kobe  loading  with  a  cargo  for 
Formosa,  the  owners  telegraphed  the  master  of  the  vessel  to 
' '  decline  rice  and  provisions  between  Japanese  ports. ' '  In  con- 
sequence of  the  refusal  of  the  master  to  accept  the  cargo  of  rice, 
sugar  and  provisions,  on  the  ground  that  they  were  contraband 
within  the  meaning  of  clause  37  of  the  charter-party,  the  steam- 
ship could  not  be  used  in  the  trade  for  which  it  was  hired,  and 
the  Osaka  Shosen  Kaisha  brought  an  action  for  breach  of  con- 
tract. The  arbitrator  who  found  the  facts  submitted  to  the 
court  several  questions,  the  first  of  which  was,  whether  the  cargo 
offered  for  shipment  at  Kobe  was  contraband  within  the  mean- 
ing of  the  Russian  declaration,  and  if  so,  whether  that  declara- 
tion is  binding  upon  neutrals.] 

THE  CHIEF  JUSTICE  [Sm  HENRY  BERKELEY]  :    .    .    . 

What  then  is  the  meaning  of  the  expression  "contraband  of 
war"  in  its  primary  sense?  Mr.  Wharton,  in  his  "Law  Lex- 
icon," defines  contraband  of  war  as  meaning  in  its  primary 
sense  that  which  according  to  international  law  cannot  be  sup- 


12  NATURE  OP  INTERNATIONAL  LAW. 

plied  to  a  hostile  belligerent  except  at  the  risk  of  seizure  and 
condemnation  by  the  aggrieved  belligerent.  That  seems  to  me  a 
sound  definition  if  you  understand  the  word  "risk"  to  mean 
that  risk  which  is  contemplated  and  recognized  by  the  law  of  na- 
tions. Broadly  stated  then  "contraband  of  war"  is  that  which 
is  so  considered  by  the  law  of  nations.  The  question  which 
naturally  follows  is  "What  do  you  mean  by  the  law  of  nations?" 
I  answer  that  the  law  of  nations  is  that  system  of  rules  respect- 
ing belligerent  and  neutral  rights  established  by  consent  among 
the  civilized  and  commercial  nations  of  the  world,  partly  written 
and  partly  arising  out  of  custom  and  rendered  stable  by  judicial 
decisions  from  time  to  time. 

In  my  opinion,  the  expression  contraband  of  war  has  a  well- 
known  and  accepted  meaning  among  the  civilized  commercial 
powers  of  the  world.  If  that  were  not  so  we  should  not,  as  we 
do,  find  the  expression  used  without  definition  in  solemn  treaties 
between  the  powers.  The  expression  "contraband  of  war"  is 
used  without  any  definition  of  its  meaning  in  the  Treaty  of 
Paris  of  the  16th  April,  1856.  The  inference  from  that  fact  is, 
to  my  mind,  irresistible  that  there  was  no  definition  needed, 
because  the  expression  had  the  same  definite  meaning  in  the 
minds  of  all  the  plenipotentiaries  of  the  Powers  parties  to  that 
treaty. 

The  Treaty  of  Paris,  to  which  Russia  is  a  party,  and  to  which 
she  still  adheres,  commences  with  the  following  preamble: 
Then  immediately  follows  this  declaration: — "The 
above-mentioned  plenipotentiaries  being  duly  authorised  resolved 
to  concert  among  themselves  as  to  the  means  of  attaining  this 
object;  and  having  come  to  an  agreement  have  adopted  the 
following  solemn  Declaration: — 

"  (1)     Privateering  is,  and  remains  abolished. 

"  (2)  The  neutral  flag  covers  enemy's  goods,  with  the  excep- 
tion of  contraband  of  war. 

"  (3)  Neutral  goods,  with  the  exception  of  contraband  of  war, 
are  not  liable  to  capture  under  the  enemy's  flag. 

"  (4)  Blockades  in  order  to  be  binding,  must  be  effective,  that 
is  to  say  maintained  by  a  force  sufficient  really  to  prevent  access 
to  the  coast  of  the  enemy." 

I  draw  special  attention  to  the  fact  that  the  expression  "con- 
traband of  war"  is  twice  used  in  this  declaration  without  being 
in  any  way  defined.  This  declaration  was  designed  to  give  effect 
to  the  opinion  of  the  plenipotentiaries  expressed  in  the  pre- 


THE  PROMETHEUS.  13 

amble,  viz.  that  it  was  to  the  advantage  of  the  civilised  world  to 
establish  a  uniform  doctrine  on  the  subject  of  maritime  law  in 
time  of  war;  and  with  that  object  in  view  to  introduce  certain 
"fixed  principles."  At  the  same  sitting  of  the  plenipotentiaries 
the  following  resolution  was  adopted  (Protocol  No.  24)  :  "On 
the  proposition  of  Count  Walewski,  and  recognising  that  it  is 
for  the  general  interest  to  maintain  the  indivisibility  of  the  four 
principles  mentioned  in  the  declaration  signed  this  day,  the 
plenipotentiaries  agree  that  the  powers  which  shall  have  signed 
it,  or  which  shall  have  acceded  to  it,  cannot  hereafter  enter  into 
any  arrangement  in  regard  to  the  application  of  the  right  of 
neutrals  in  time  of  war  which  does  not  at  the  same  time  rest  on 
the  four  principles  which  are  the  object  of  the  said  declaration." 

It  will  be  observed  that  by  this  Protocol  the  plenipotentiaries 
of  Russia  bind  that  Power  not  thereafter  to  adopt  any  attitude 
towards  neutrals  in  time  of  war  which  does  not  rest  upon  the 
four  principles  enunciated  in  the  declaration.  This  Protocol 
has  an  important  bearing  upon  the  contention  at  the  Bar  that 
Russia  as  an  independent  sovereign  state  possesses,  as  a  con- 
comitant to  the  right  to  make  war,  the  right  to  declare  what 
shall  or  shall  not  be  considered  contraband  of  war. 

I  dwell  here  upon  the  fact  that  the  expression  "contraband  of 
war"  occurs  twice  in  the  declaration  in  the  Treaty  of  Paris;  that 
the  expressions  "privateering"  and  " blockade "  occur  each  once ; 
and  that  there  is  in  that  declaration  no  definition  of  the  meaning 
of  any  of  those  expressions.  Why  was  there  this  omission  to 
define  these  expressions?  Was  it  not  because  they  each  had  in 
the  minds  of  the  Plenipotentiaries  of  the  Powers  a  recognized 
meaning  at  the  time  when  the  treaty  was  signed  ?  and  because  the 
expression  "contraband  of  war"  no  more  needed  defienition  than 
the  expressions  "blockade"  or  "privateering"  did?  What  then 
was  the  meaning  which  it  must  fairly  be  assumed  the  Plenipoten- 
tiaries attached  to  the  expression  "contraband  of  war"  as  used 
by  them  in  the  Treaty  of  Paris  ?  It  seems  to  me  that  the  Plenipo- 
tentiaries had  in  their  minds  the  meaning  which  at  the  time  at- 
tached to  the  expression  "contraband  of  war"  resulting  from  the 
decisions  of  the  courts  of  law  of  the  nations  of  Europe  and 
America ;  principally  indeed  the  decisions  in  the  English  Courts 
on  cases  arising  during  the  Napoleonic  War.  What  then  is  the 
result  of  those  decisions?  What  meaning  has  been  thereby  at- 
tached to  the  expression  "contraband  of  war"?  The  result  has 
been  to  attach  to  that  expression  the  following  twofold  mean- 


14  NATURE  OF  INTERNATIONAL  LAW. 

ing: — (1)  Absolute  contraband  of  war — which  includes  every- 
thing useful  for  war  only;  (2)  That  which  is  conditional 
contraband  of  war — which  includes  all  things  which  though 
useful  for  both  peace  and  war  become  contraband  if  des- 
tined for  the  purposes  of  war:  excluding  from  the  meaning 
of  contraband  of  war  such  things  as  are  useful  for  the  purposes 
of  peace  only.  "Provisions,"  consequently,  come  within  the 
definition  of  conditional  contraband  only,  if  and  when  destined 
for  the  enemy's  forces;  otherwise  they  are  excluded  from  the 
definition.  That  is,  in  my  opinion,  the  true  meaning  to  be  at- 
tached to  the  expression  "contraband  of  war,"  and  that  is  the 
sense  which,  in  my  opinion,  that  expression  bears  on  a  true  con- 
struction of  the  Declaration  of  the  Plenipotentiaries  who  signed 
the  Treaty  of  Paris  of  1856.  That  is,  in  my  opinion,  the  sense 
in  which  the  parties  to  the  charter  of  the  ship  Prometheus  must 
be  taken  to  have  understood  the  expression  ' '  contraband  of  war ' ' 
when  they  agreed  by  Clause  37,  that  the  ship  Prometheus  was 
not  to  "carry  any  contraband  of  war."  To  construe  that  ex- 
pression as  meaning  whatever  might  at  any  time,  that  is  to  say 
from  time  to  time,  be  declared  by  Russia  to  be  contraband,  as 
the  learned  counsel  for  the  owner  contended  I  should,  would  be 
to  import  into  the  contract  between  the  parties  an  element  of 
uncertainty  where  none  need  exist.  The  contract  was  made  in 
Hongkong,  and  therefore  in  the  absence  of  evidence  to  the  con- 
trary which  I  could  act  upon  the  parties  must  be  taken  to  have 
used  the  expression  "contraband  of  war"  in  the  sense  in  which 
[it]  is  understood  in  British  courts  of  law,  which  is  its  sense  in 
international  law.  It  cannot  be  successfully  contended  that 
provisions  would  be  regarded  by  British  courts  of  law  as  un- 
conditional contraband  of  war,  or  that  there  is  any  likelihood 
that  they  will  ever  take  that  view.  Had  this  court  been  asked 
at  any  time  between  the  signing  of  the  charter  party  on  the 
10th  February,  1904,  and  the  issuing  of  the  Russian  declaration 
to  construe  the  meaning  of  the  words  contraband  of  war  it  can- 
not be  doubted  that  it  would  have  excluded  provisions  from  the 
category  of  unconditional  contraband.  It  is  contended  however 
that  the  court  ought  to  place  a  different  meaning  on  that  ex- 
pression, after,  and  in  view  of,  the  terms  of  the  Russian  declara- 
tion, inasmuch  as  Russia  being  a  sovereign  independent  power 
has  a  prerogative  right  to  declare  whatever  she  pleases  to  be 
contraband  of  war  in  any  war  in  which  she  may  be  engaged, 
and  that  the  effect  of  the  Russian  declaration  having  been  to 


THE  PROMETHEUS.  15 

make  provisions  unconditionally  contraband  the  master  of  the 
ship  Prometheus  was  excused  from  loading  them  on  his  ship. 
In  this  contention  I  am  unable  to  concur.  In  the  view  which  I 
take  of  the  effect  of  the  Declaration  under  the  Treaty  of  Paris 
of  1856,  and  of  the  undertaking  by  the  several  powers  signatory 
thereto,  given  in  the  Protocol  No.  24,  not  to  depart  from  the 
principles  enunciated  in  the  Declaration,  I  think  that  Russia 
was  not  at  liberty  to  declare  provisions  unconditional  contra- 
band of  war ;  and  that  her  declaration  in  that  respect  could  not 
affect  the  contract  between  the  parties  to  this  charter  party, 
even  supposing  it  could  be  held  that  contraband  of  war  means, 
as  used  in  the  charter  party,  whatever  Russia  may  consider  as 
such:  for  Russia  having  been  a  party  to  the  solemn  declaration 
of  "fixed  principles"  under  the  Treaty  of  Paris  was  not  at 
liberty  to  disregard  those  principles  and  was  therefore  bound 
to  recognize,  and  act  upon,  the  generally  accepted  rule  of 
international  law  that  provisions  are  not  unconditional  contra- 
band. In  this  view  I  am  supported  by  the  decision  in  the  case 
of  Pollard  v.  Bell,  8  T.  R.  434,  where  it  was  laid  down  that  it 
is  not  competent  to  one  nation  to  add  to  the  law  of  nations  by 
its  own  arbitrary  ordinances  without  the  concurrence  of  other 
nations !  Against  the  view  which  I  hold,  viz.  that  provisions 
are  by  the  law  of  nations  only  conditional  contraband,  and  that 
they  were  so  regarded  by  the  signatories  to  the  Treaty  of  Paris, 
1856,  it  was  urged  that  notwithstanding  that  treaty  the  French 
when  engaged  in  hostilities  against  China  in  1885  intended  to 
treat  as  contraband  all  shipments  of  rice  destined  to  the  open 
ports  north  of  Canton.  That  fact  however  only  amounts  to 
this :  that  on  that  occasion  France  proposed  to  act  in  a  manner 
which,  had  she  been  called  upon  to  defend,  she  would  have  found 
difficulty  in  justifying,  in  the  face  of  the  declaration  under  the 
Treaty  of  Paris  to  which  she  was  a  party.  Fortunately  pre- 
liminaries of  peace  were  settled  before  any  seizures  were  in  fact 
made  by  the  French,  and  so  the  intended  action  of  France  can- 
not properly  be  drawn  into  a  precedent  against  the  principle 
enunciated  in  Pollard  v.  Bell.  It  is  moreover  to  be  remarked  in 
connection  with  this  intended  action  on  the  part  of  France  in 
1885  that  her  right  to  make  provisions  unconditional  contraband 
was  at  the  time  denied  by  Great  Britain.  In  Pollard  v.  Bell, 
8  T.  R.  434,  decided  in  1800,  a  French  Prize  Court,  France  then 
being  at  war  with  Great  Britain,  and  Denmark  being  neutral, 
condemned  a  Danish  ship  on  the  ground  that  she  was  at  the 


16  NATURE  OF  INTERNATIONAL  LAW. 

time  of  capture  carrying  a  Scotchman  as  supercargo  in  violation 
of  an  ordinance  by  which  it  was  declared  that  all  ships  should 
be  confiscated  "wherever  there  shall  be  found  on  board  a  super- 
cargo, merchant,  commissary,  or  chief  officer  being  an  enemy." 
In  dealing  with  the  ground  assigned  by  the  French  Court  con- 
demning the  ship  Chief  Justice  Lord  Kenyon  said  "this  is  one 
of  the  numberless  questions  that  have  arisen  in  consequence  of 
the  extraordinary  sentences  of  condemnation  passed  by  the 
courts  of  Admiralty  in  France  during  this  war  ...  to  a 
question  asked  in  the  course  of  the  argument,  what  are  the  rules 
on  which  the  Courts  of  Admiralty  profess  to  proceed,  I  answer, 
the  law  of  nations,  and  such  treaties  as  particular  states  have 
agreed  shall  be  engrafted  on  that  law.  It  was  said  by  the  de- 
fendant's counsel  that  an  ordinance  has  the  same  force  as  a 
treaty,  but  without  stopping  to  enlarge  on  the  difference  between 
them  it  is  sufficient  to  say  that  the  one  is  a  contract  made  by  the 
contracting  parties  and  that  the  other  is  an  ex-parte  ordinance 
made  by  one  nation  only,  to  which  no  other  state  is  a  party ;  and 
I  concur  with  Lord  Mansfield  in  opinion  that  it  is  not  competent 
to  one  nation  to  add  to  the  law  of  nations  by  its  own  arbitrary 
ordinances  without  the  concurrence  of  other  nations."  Continu- 
ing, his  lordship  said  "  let  us  see  what  was  the  foundation  of  the 
condemnation  in  the  French  courts.  It  is  stated  that  by  their 
ordinance  all  ships  are  to  be  confiscated  whensoever  on  board 
those  ships  shall  be  found  a  supercargo,  merchant,  commissary 
or  chief  officer  being  an  enemy,  but  I  say  they  had  no  right  by 
making  such  an  ordinance  to  bind  other  nations."  What  was 
the  ratio  decidendi  in  this  case  ?  The  decision  was  based  on  the 
ground  that  the  French  courts  had,  in  accordance  with  a  French 
ordinance  which  was  opposed  to  international  law,  decided  that 
a  ship  was  liable  to  be  condemned  merely  because  she  carried  on 
board  an  officer  whose  nationality  was  that  of  an  enemy.  Such 
then  was  the  view  expressed  by  Lord  Kenyon  as  to  the  value 
and  effect  of  a  French  ordinance  which,  departing  from  the 
recognized  custom  of  nations,  decreed  that  a  ship  might  be  con- 
demned merely  because  she  carried  an  officer  of  the  nationality 
of  the  enemy.  Applying  the  principle  of  that  case  to  the  present 
case,  I  say  that  the  Russian  declaration  including  provisions 
among  the  list  of  articles  absolutely  contraband  and  as  depart- 
ing from  the  recognised  custom  of  nations  had  no  binding  effect 
upon  other  nations,  and  consequently  could  not  excuse  the  non- 
performance  of  the  contract  under  the  charter  party  between 


NOTE.  17 

the  Osaka  Shosen  Kaisha  and  the  owners  of  the  s.  s.  Prometheus. 
It  was  contended  on  behalf  of  the  owners  of  the  Prometheus  that 
the  term  'law'  as  applied  to  this  recognised  system  of  principles 
and  rules  known  as  international  law  is  an  inexact  expression, 
that  there  is,  in  other  words,  no  such  thing  as  international  law ; 
that  there  can  be  no  such  law  binding  upon  all  nations  inasmuch 
as  there  is  no  sanction  for  such  law,  that  is  to  say  that  there  is 
no  means  by  which  obedience  to  such  law  can  be  imposed  upon 
any  given  nation  refusing  obedience  thereto.  I  do  not  concur  in 
that  contention.  In  my  opinion  a  law  may  be  established  and 
become  international,  that  is  to  say  binding  upon  all  nations,  by 
the  agreement  of  such  nations  to  be  bound  thereby,  although  it 
may  be  impossible  to  enforce  obedience  thereto  by  any  given 
nation  party  to  the  agreement.  The  resistance  of  a  nation  to  a 
law  to  which  it  has  agreed  does  not  derogate  from  the  authority 
of  the  law  because  that  resistance  cannot,  perhaps,  be  overcome. 
Such  resistance  merely  makes  the  resisting  nation  a  breaker  of 
the  law  to  which  it  has  given  its  adherence,  but  it  leaves  the  law, 
to  the  establishment  of  which  the  resisting  nation  was  a  party, 
still  subsisting.  Could  it  be  successfully  contended  that  because 
any  given  person  or  body  of  persons  possessed  for  the  time  being 
power  to  resist  an  established  municipal  law  such  law  had  no 
existence?  The  answer  to  such  a  contention  would  be  that  the 
law  still  existed,  though  it  might  not  for  the  time  being  be  pos- 
sible to  enforce  obedience  to  it.  My  answer  to  the  first  question 
put  to  me  by  the  arbitrator  must  therefore,  for  the  reasons  I 
have  given,  be  (1)  that  the  cargo  intended  to  be  loaded  by  the 
charterers  on  the  steamship  Prometheus  was  not  contraband  of 
war  within  the  meaning  of  the  charter  party;  (2)  that  the  Rus- 
sian declaration  constituting  provisions  unconditional  contra- 
band was  not  binding  upon  neutrals  who  were  no  party  thereto, 
and  consequently  has  no  bearing  upon  the  construction  of  the 
charter  party  between  the  Osaka  Shosen  Kaisha  and  the  owners 
of  the  ship  Prometheus.  .  .  . 

NOTE. — Whether  international  law  is  really  law  in  the  proper  sense  of 
that  term  has  been  a  subject  of  much  speculation.  Practically  all  the 
larger  treatises  consider  the  question,  and  it  is  also  well  discussed  in 
the  following:  Foulke,  International  Law,  I,  Part  I;  Reeves,  "Inter- 
national Society  and  International  Law,"  Am.  Jour.  Int.  Laiv,  XV, 
361;  Sherman,  "Jus  Gentium  and  International  Law,"  Ib.  XII,  56, 
and  "The  Nature  and  Sources  of  International  Law,"  Ib.  XV,  349; 
J.  B.  Scott,  "The  Legal  Nature  of  International  Law,"  Ib.  I,  831,  a 
brilliant  article  criticised  by  W.  W.  Willoughby  in  Ib.  II,  357;  Sir 


18  NATURE  OF  INTERNATIONAL  LAW. 

F.  Pollock,  "The  Sources  of  International  Law,"  Col.  Law  Rev.,  II, 
511;  Baron  Russell  of  Killowen,  "International  Law,"  Law  Quar.  Rev. 
XII,  337.  See  also  Thirty  Hogsheads  of  Sugar  v.  Boyle  (1815),  9 
Cranch,  191,  198;  The  Antelope  (1825),  10  Wheaton,  66,  120;  Moore, 
Digest,  I,  1.  In  The  Ekaterinoslav  (1905),  Takahashi,  586,  counsel 
for  the  claimants  of  the  captured  vessel  argued  that  the  declara- 
tions of  the  Powers  and  the  resolutions  of  scholars  constitute  the 
rules  and  usage  of  international  law  now  in  force,  and  that  the  Rules 
of  Capture  at  Sea  resolved  upon  by  the  Institute  of  International  Law 
at  Turin  in  1882,  the  proposals  of  the  International  Peace  Conference 
of  1887,  and  the  amendments  resolved  upon  by  the  Institute  of  In- 
ternational Law  at  Paris  in  1885  ought  to  be  taken  as  the  law  govern- 
ing the  instant  case.  Furthermore  it  was  said: 

There  is  no  fixed  International  Law  for  a  state  to  observe, 
but  any  just  and  impartial  practice  adopted  by  it  according  to 
circumstances  becomes  the  standard  of  International  Law. 
In  applying  the  rules  of  International  Law  at  the  time  of  war, 
therefore,  a  state  should  take  into  consideration  the  spirit  of 
the  times  and  the  most  advanced  theories  of  scholars,  basing 
all  its  decisions  on  the  great  principle  of  universal  benevo- 
lence. 

In  denying  the  petition,  the  Higher  Prize  Court  of  Japan  said: 

The  Rules  of  Capture  at  \Sea  resolved  upon  by  the  Institue  of 
International  Law  at  Turin  .  .  .  are  nothing  more  than 
the  desire  of  scholars,  open  to  further  discussion  by  the 
Powers.  Under  International  Law  they  have  no  authority. 
As  to  the  advocate's  vague  argument  for  governing 
the  solid  business  of  the  day  by  the  principle  of  universal 
benevolence,  it  is  inadmissible.  It  ignores  the  fact  that  war 
is  indispensable  in  the  present  state  of  national  intercourse. 

The  nature  of  international  law  was  thus  described  by  Blackstone  in 
his  Commentaries,  IV,  66: 

The  law  of  nations  is  a  system  of  rules,  deducible  by  natural 
reason,  and  established  by  universal  consent  among  the  civil- 
ized inhabitants  of  the  world;  in  order  to  decide  all  disputes, 
to  regulate  all  ceremonies  and  civilities,  and  to  insure  the 
observance  of  justice  and  good  faith  in  that  intercourse  which 
must  frequently  occur  between  two  or  more  independent 
states,  and  the  individuals  belonging  to  each.  This  general  law 
is  founded  upon  this  principle — that  different  nations  ought 
in  time  of  peace  to  do  one  another  all  the  good  they  can, 
and  in  time  of  war  as  little  harm  as  possible,  without  preju- 
dice to  their  own  real  interests.  And,  as  none  of  these  states 
will  allow  a  superiority  in  the  other,  therefore  neither  can  dic- 
tate or  prescribe  the  rules  of  this  law  to  the  rest;  but  such  rules 
must  necessarily  result  from  those  principles  of  natural  jus- 
tice in  which  all  the  learned  of  every  nation  agree;  or  they 


NOTE.  19 

depend  upon  mutual  compacts  or  treaties  between  the  respec- 
tive communities,  in  the  construction  of  which  there  is  also  no 
Judge  to  resort  to  but  the  law  of  nature  and  reason,  being  the 
only  one  in  which  all  the  contracting  parties  are  usually 
conversant  and  to  which  they  are  equally  subject. 

The  sources  from  which  international  law  is  derived  were  indicated 
by  Mr.  Justice  Gray  in  The  Paquete  Habana  v.  United  States  (1899), 
175  U.  S.  677,  694: 

International  law  is  part  of  our  law,  and  must  be  ascer- 
tained and  administered  by  the  courts  of  justice  of  appro- 
priate jurisdiction,  as  often  as  questions  of  right  depending 
upon  it  are  duly  presented  for  their  determination.  For  this 
purpose,  where  there  is  no  treaty,  and  no  controlling  execu- 
tive or  legislative  act  or  judicial  decision,  resort  must  be  had 
to  the  customs  and  usages  of  civilized  nations;  and,  as  evi- 
dence of  these,  to  the  works  of  jurists  and  commentators, 
who,  by  years  of  labor,  research,  and  experience,  have  made 
themselves  peculiarly  well  acquainted  with  the  subjects  of 
which  they  treat.  Such  works  are  resorted  to  by  judicial 
tribunals,  not  for  the  speculations  of  their  authors  concern- 
ing what  the  law  ought  to  be,  but  for  trustworthy  evidence 
of  what  the  law  really  is. 

Confusion  is  often  produced  as  to  the  nature  of  international  law 
by  an  inexact  use  of  terms.  If  the  phrase  international  law  is 
confined  to  that  body  of  rules  by  which  the  relations  of  nations  with 
each  other  or  of  one  nation  with  the  citizens  of  other  nations  are 
regulated,  there  yet  remain  two  other  branches  of  jurisprudence  which, 
although  they  relate  only  to  private  interests,  are  often  treated  as 
phases  of  international  law,  namely  maritime  law  and  the  conflict 
of  laws. 

Maritime  or  admiralty  law  is  one  of  the  most  ancient  branches 
of  jurisprudence.  Commerce  upon  the  sea  brought  about  the  develop- 
ment of  a  body  of  principles  for  its  regulation.  Similar  needs  pro- 
duced similar  rules,  and  as  the  parties  to  the  controversies  were  often 
citizens  of  different  states,  it  was  desirable  that  the  rules  of  the 
various  nations  should  be  as  nearly  alike  as  possible.  At  various 
times  the  law  of  the  sea  has  been  embodied  in  something  like  a  code. 
The  law  of  Rhodes,  some  sections  of  the  code  of  Justinian,  the  Con- 
solato  del  Mare,  the  laws  of  Oleron,  the  laws  of  Wisburg  are  all 
based  upon  the  customs  and  usages  which  had  grown  up,  particu- 
larly on  the  Mediterranean,  in  connection  with  sea-borne  commerce. 
"Almost  all  Europe,"  said  Justice  Story,  "have  derived  their  mari- 
time codes  from  the  Mediterranean;  and  even  in  this  country  we 
take  pride  in  conforming  our  decisions  to  the  rules  of  the  venerable 
Consolato  del  Mare,"  The  Jerusalem  (1814),  2  Gallison,  191.  The 
maritime  law,  however,  except  the  law  of  prize  which  is  applied 
only  in  time  of  war,  is  not  concerned  with  the  relations  of  nations 
with  each  other.  If  a  British  vessel  assists  a  Dutch  vessel  in  dis- 
tress, and  a  suit  for  salvage  services  is  brought  in  an  American 


20  NATURE  OF  INTERNATIONAL  LAW. 

court,  no  international  relation  is  involved.  It  is  merely  a  question 
of  private  rights,  and  these  are  determined  not  by  British  or  Dutch 
or  American  law  but  by  the  common  law  of  the  sea  as  generally 
adopted  by  maritime  nations  and  as  received  in  the  United  States, 
Anderson  v.  The  Edam  (1882),  13  Fed.  135.  In  The  Scotia  (1872), 
12  Wallace,  170,  the  opinion  of  the  court  is  confusing  because  it  fails 
to  make  this  distinction.  The  maritime  law  was  developed  in  the 
early  middle  ages  by  the  consuls  who  presided  in  the  courts  of  the 
merchants,  but  as  it  concerned  the  sea,  its  enforcement  was  very 
generally  committed  to  the  sovereign's  chief  maritime  officer,  called 
in  England  the  Lord  High  Admiral.  To  him  or  to  his  deputy,  the 
Judge  of  the  Admiralty  Court,  maritime  controversies  were  brought, 
and  through  the  Admiralty  Court  and  similar  courts  in  other  mari- 
time countries  admiralty  law  has  been  developed.  The  history  of 
British  admiralty  jurisdiction  is  traced  in  the  monumental  opinion 
of  Justice  Story  in  De  Lovio  v.  Boit  (1815),  2  Gallison,  398.  Many 
of  the  early  maritime  codes  may  be  found  in  the  appendix  to  Peter's 
Admiralty  Decisions  and  in  30  Fed.  Cases,  1169.  For  the  relation 
of  admiralty  law  to  the  municipal  law  see  The  Lottawanna  (1875), 

21  Wallace,   558.     For  the   development  of   admiralty   jurisdiction   in 
the  United    States   see  The   Genessee   Chief    (1853),   12   Howard,   443 
and  United  States  v.  Rodgers  (1893),  150  U.  S.  249. 

The  terms  "private  international  law",  "international  private  law" 
and  "conflict  of  laws"  are  applied  to  that  branch  of  jurisprudence 
which  is  concerned  with  the  jurisdiction  of  states  and  with  the 
effect  to  be  given  in  one  state  to  rights  acquired  or  status  created  in 
another.  In  determining  what  jurisdiction  it  will  exercise,  a  court 
does  not  look  to  the  rules  of  international  law,  but  to  the  rules  fol- 
lowed in  each  country  for  the  determination  of  its  own  jurisdiction; 
and  great  weight  will  be  given  to  any  which  have  found  general 
acceptance  and  have  become  part  of  the  law  common  to  all  nations, 
British  South  Africa  Co.  v.  Companhia  de  Mozambique  [1893]  A.  C. 
602.  If  a  court  takes  jurisdiction,  it  must  then  determine  what  law 
it  will  apply.  A  British  vessel  in  Dutch  waters,  while  under  the 
control  of  a  Dutch  pilot  which  the  local  authorities  compelled  it  to 
take  on,  damages  a  Norwegian  vessel.  Under  Dutch  law  a  vessel 
under  the  control  of  compulsory  pilot  is  liable  for  the  damage  which 
it  commits,  while  under  British  law  it  is  not.  In  a  suit  brought  by 
the  Norwegian  owner  in  a  British  court,  which  rule  should  the  court 
apply?  The  Halley  (1868),  L.  R.  2  P.  C.  193.  After  the  birth  of  a 
child,  its  parents  marry,  but  their  marriage  does  not  legitimate  the 
child  in  that  jurisdiction.  Later  the  parents  establish  their  domicile 
in  a  jurisdiction  where  such  a  marriage  would  legitimate  the  child. 
Is  it  legitimate  in  that  jurisdiction?  Smith  v.  Kelly  (1851),  23  Miss. 
167.  An  American  made  a  will  leaving  all  his  property  to  his  brothers 
and  sisters.  He  then  married  a  French  woman  in  France  and  estab- 
lished a  matrimonial  domicile  there,  but  ultimately  returned  to 
America  and  died  here  leaving  his  original  will  unrevoked.  Is  his 
widow  entitled  to  one-half  of  his  personal  property  in  accordance  with 
the  law  of  France,  or  are  her  rights  to  be  determined  by  the  law  of 
her  husband's  American  domicile?  Harral  v.  Harral  (1884),  39 


NOTE.  21 

N.  J.  Eq.  279.  If  a  judgment  is  fraudulently  obtained  In  Russia  and 
suit  is  brought  in  England  for  its  enforcement,  will  the  English 
court  give  effect  to  the  judgment  without  admitting  proof  that  the 
Russian  court  was  deceived?  Abouloff  v.  Oppenheimer  (1882),  10 
Q.  B.  D.  295.  In  all  these  cases  the  court  is  called  upon  to  enforce 
rights  which  are  created,  if  created  at  all,  in  a  foreign  jurisdiction. 
In  the  course  of  such  adjudication  it  must  determine  by  what  law 
the  rights  in  question  are  to  be  judged.  Hence  this  branch  of  juris- 
prudence was  named  by  Justice  Story  the  "conflict  of  laws".  While 
the  term  is  not  altogether  satisfactory,  it  is  less  misleading  that  the 
term  "private  international  law,"  for  in  the  conflict  of  laws,  as  in 
maritime  law,  no  international  state  relation  is  involved. 

In  the  settlement  of  questions  in  the  conflict  of  laws  appeal  is  fre- 
quently made  to  the  "comity  of  nations."  As  to  the  meaning  of  this 
term,  the  Supreme  Court  of  the  United  States,  in  Hilton  v.  Guyot 
(1895),  159  U.  S.  113,  163,  said: 

No  law  has  any  effect,  of  its  own  force,  beyond  the  limits 
of  the  sovereignty  from  which  its  authority  is  derived.  The 
extent  to  which  the  law  of  one  nation,  as  put  in  force  within 
its  territory,  whether  by  executive  order,  by  legislative  act, 
or  by  judicial  decree,  shall  be  allowed  to  operate  within  the  do- 
minion of  another  nation,  depends  upon  what  our  greatest 
jurists  have  been  content  to  call  "the  comity  of  nations". 
Although  the  phrase  has  been  often  criticised,  no  satisfactory 
substitute  has  been  suggested. 

'Comity,"  in  the  legal  sense,  is  neither  a  matter  of  absolute 
obligation,  on  the  one  hand,  nor  of  mere  courtesy  and  good  , 
will,  upon  the  other.  But  it  is  the  recognition  which  one 
nation  allows  within  its  territory  to  the  legislative,  executive 
or  judicial  acts  of  another  nation,  having  due  regard  both  to 
international  duty  and  convenience,  and  to  the  rights  of  its 
own  citizens  or  of  other  persons  who  are  under  the  protec- 
tion of  its  laws. 

For  a  full  discussion  of  the  arguments  for  and  against  the  various 
terms  applied  to  the  conflict  of  laws,  see  the  introduction  to  Dicey, 
.4  Digest  of  the  Law  of  England  with  Reference  to  the  Conflict  of 
Laics,  and  Beale,  A  Treatise  on  the  Conflict  of  Laws  or  Private  2n- 
ternational  Law.  Other  standard  treatises  are  Story,  The  Conflict 
of  Laws;  von  Bar,  Private  .International  Law;  Foote,  Private  Inter- 
national Law;  Savigny,  A  Treatise  on  the  Conflict  of  Laws;  West- 
lake,  Conflict  of  Laws;  and  Wharton,  A  Treatise  on  the  Conflict  of 
Laws. 

While  the  system  of  jurisprudence  now  known  as  international 
law  is  the  product  of  modern  European  civilization,  it  was  found  in 
rudimentary  forms  in  classic  times  and  there  were  well  established 
rules  as  to  the  rights  of  ambassadors  and  the  making  of  war  and 
peace.  The  gradual  absorption  by  Rome  of  all  the  states  of  the 
Mediterranean  world  put  an  end  to  further  development,  and  it  was 
not  until  the  rise  of  new  states  in  the  Middle  Ages  that  there  was 


22  NATURE  OF  INTERNATIONAL  LAW. 

any  need  for  rules  governing  international  intercourse.  The  mediae- 
val  scholastic  jurists  and  canonists  however  began  at  once  to  specu- 
late on  the  nature  of  international  relations  and  the  rules  which 
should  control  them.  Before  the  publication  by  Grotius  in  1625  of 
his  treatise  De  Jure  Belli  ac  Pads,  which  is  the  foundation  of  modern 
international  law,  the  subject  had  received  wide  attention  and  there 
was  in  existence  a  considerable  body  of  writing  bearing  upon  it. 
Such  men  as  Ayala,  Belli,  Legnano,  Victoria,  Suarez,  Hooker  and  Gen- 
tili  had  made  substantial  contributions  to  the  study  of  international  re- 
lations, and  their  work  served  as  the  foundation  for  the  great  work  of 
Grotius.  See  Phillipson,  The  International  Law  and  Custom  of  An- 
cient Greece  and  Rome;  Nys,  Les  Origines  du  Droit  International; 
Vanderpol,  La  Doctrine  Scholastique  du  Droit  de  Guerre. 

Among  the  oriental  nations  also,  which  had  a  political  development 
entirely  independent  of  that  of  Europe,  international  intercourse  had 
resulted  in  recognized  rules  for  its  regulation.  The  naturalization 
of  foreigners  in  Japan  began  as  early  as  219  B.  C.  Japan  and  China 
began  relations  with  each  other  about  100  A.  D.  and  they  first  ex- 
changed ambassadors  in  607  A.  D.  In  609,  in  reply  to  a  courteous 
letter  from  the  Emperor  of  China,  the  Japanese  Emperor  sent  a  reply 
beginning  with  the  words,  "The  Emperor  of  the  East  seeks  respect- 
fully to  address  the  Emperor  of  the  West."  But  the  Emperor  of 
China,  who  was  the  ruler  of  many  dependent  states,  looked  upon  all 
other  princes  as  his  vassals  and  thought  of  himself  as  the  supreme 
ruler  of  the  world.  In  12G8  the  great  Kublai  Khan  sent  a  letter  to 
the  "king  of  Japan"  in  which  he  said,  "The  world  is  my  house;  how 
can  you  expect  to  be  of  my  family  without  having  relations  with 
me?"  In  consequence  of  this  point  of  view,  the  conception  of  inter- 
national relations  as  intercourse  among  equals  governed  by  rules 
which  all  were  bound  to  observe  made  less  progress  in  China  than 
in  Japan. 

Among  the  principles  governing  international  relations  which  were 
developed  by  Japan  were  the  notion  of  the  equality  of  sovereign 
states,  the  sanctity  and  dignity  of  ambassadors,  rules  as  to  interven- 
tion, protectorates  and  naturalization,  the  duty  to  treat  prisoners 
of  war  with  humanity,  the  prohibition  of  the  pillaging  of  enemy 
property  and  of  certain  means  of  destruction,  e.  g.  poison,  the 
protection  of  women  and  priests  in  time  of  war  and  the  duty  to  observe 
flags  of  truce.  International  relations  in  the  Orient  however  were 
so  circumscribed  that  international  law  as  a  system  of  jurisprudence 
remained  in  a  primitive  condition  until  the  opening  of  Japan  and 
China  to  trade  with  the  Occident.  The  system  of  international  law 
which  had  grown  up  in  Europe  was  much  more  fully  developed  than 
any  similar  system  in  the  Orient  and  its  principles  were  therefore 
readily  accepted.  In  the  war  between  France  and  Prussia  in  1870, 
Japan  issued  a  proclamation  of  neutrality,  and  this  may  be  said  to 
mark  her  definite  acceptance  of  the  European  system  of  international 
law.  On  the  development  of  international  law  among  peoples  of  non- 
European  civilization  see  Takahashi,  "Le  Droit  International  dans 
1'Histoire  du  Japon,"  Revue  de  Droit  International  (2nd  series),  III, 


EMPEROR  OF  AUSTRIA  v.  DAY.  23 

188,  and  Wheeler,  "Etude  sur  1'Histoire  Primitive  du  Droit  Interna- 
tional," Ib.  X,  5. 

International  law  is  the  outgrowth  of  modern  European  civilization 
and  is  applied  in  its  fullness  only  to  the  states  which  are  the  product 
of  that  civilization  and  to  Japan.  That  Empire  was  accorded  full 
rank  as  a  member  of  the  family  of  nations  when  the  Christian  powers 
surrendered  their  consular  jurisdiction  therein  and  remitted  their 
subjects  to  the  Japanese  tribunals.  See  Moore,  Digest,  II,  654; 
Hishida,  The  International  Position  of  Japan  as  a  Great  Power,  ch. 
vi.  By  express  agreement  of  the  Powers  in  1856  Turkey  was  declared 
"admitted  to  participate  in  the  advantages  of  the  public  law  and 
system  of  Europe,"  but  its  sponsors  nevertheless  continued  to  main- 
tain their  consular  jurisdiction  therein. 

Some  of  the  rights  usually  recognized  by  international  law  as 
appertaining  to  sovereign  states  are  still  withheld  from  China,  Siam 
and  Persia;  but  in  the  case  of  Siam,  the  United  States  has  entered 
into  a  treaty  which  involves  ultimately  the  full  recognition  of  Siam 
by  the  United  States.  On  December  10,  1921  the  Washington  Con- 
ference on  the  Limitation  of  Armament  provided  for  the  appoint- 
ment of  a  commission  to  investigate  the  system  of  extraterritorial 
jurisdiction  in  China  and  the  judiciary  of  China  with  a  view  to  hand- 
ing over  their  administration  to  the  native  government.  Later  the 
Conference  adopted  other  resolutions  looking  to  the  surrender  to 
China  of  full  control  of  all  governmental  agencies  in  her  territory. 
See  Am.  Jour.  Int.  Law,  XVI,  Supplement,  76.  For  the  view  taken 
of  the  relation  of  Mohammedan  countries  to  international  law,  see 
the  decisions  of  Lord  Stowell  in  The  Hurtige  Hane  (1801),  3  C. 
Robinson,  324;  The  Helena  (1801),  4  Ib.  3;  and  The  Madonna  del 
Burso  (1802),  4  Ib.  169. 


SECTION  2.    THE  RELATION  OP  INTERNATIONAL  LAW  TO 
MUNICIPAL  LAW. 

THE  EMPEROR  OF  AUSTRIA  v.  DAY  AND  KOSSUTH. 

THE  HIGH  COURT  OF  CHANCERY  OF  ENGLAND.     1861. 
2  Giffard,  628. 

[The  Hungarian  patriot  Louis  Kossuth  arranged  with  Messrs. 
Day  and  Sons,  lithographers,  for  the  manufacture  in  England 
of  a  large  quantity  of  paper  notes  designed  to  be  introduced 
into  Hungary  as  money  and  to  be  circulated  there  in  further- 
ance of  the  plans  of  the  revolutionists.  When  the  notes  were 
almost  ready  for  delivery,  the  Emperor  of  Austria  as  King  of 


24          INTERNATIONAL  AND  MUNICIPAL  LAW. 

Hungary  sought  to  enjoin  their  further  manufacture  or  the 
delivery  to  Kossuth  of  those  already  manufactured.] 

THE  VICE-CHANCELLOR  [Sm  JOHN  STUART]  : — 

The  plaintiff  sues  in  his  sovereign  character,  as  King  of 
Hungary.  He  asks  the  assistance  of  the  Court  to  prevent  an 
injury,  of  a  public  kind,  to  what  he  asserts  to  be  his  legal  rights. 
These  rights  he  claims  as  the  acknowledged  possessor  of  the 
sovereign  power  in  a  foreign  state  at  peace  with  this  kingdom. 

It  appears  that  the  defendants  have  manufactured  and  pre- 
pared in  this  country  a  vast  quantity  of  printed  paper,  purport- 
ing to  represent  public  paper  money  of  Hungary,  such  as  could 
be  lawfully  issued  by  the  sovereign  power.  What  they  have 
thus  prepared  is  intended  to  be  circulated  at  some  future  time 
as  the  public  paper  money  of  Hungary.  This  paper  has  been 
thus  made  and  prepared,  not  only  without  the  license  of  the 
plaintiff,  but  as  in  exercise  of  some  contemplated  power  hostile 
to  that  of  the  plaintiff,  and  intended  to  supersede  it. 

What  the  Court  has  now  to  decide  is  the  question,  whether 
the  defendants  can,  by  the  law  of  England,  be  allowed  to  con- 
tinue in  possession,  or  to  be  protected  in  the  possession,  of  this 
large  quantity  of  printed  paper,  manufactured  and  held  by 
them  for  such  a  purpose;  or  whether,  on  the  other  hand,  the 
plaintiff  is  entitled  to  have  the  right  of  which  he  claims  to  be  in 
possession,  protected  against  the  invasion  of  the  defendants, 
and  to  have  delivered  up  to  him  what  has  been  thus  prepared, 
and  made  ready  to  be  used,  for  a  purpose  hostile  to  his  existing 
right. 

For  the  defendants,  it  has  been  argued,  that  this  Court  has 
no  jurisdiction  in  such  a  case;  that  what  is  complained  of  is  a 
public  wrong,  not  cognizable  by  the  law  of  England,  because 
it  relates  merely  to  the  public  and  political  affairs  of  a  foreign 
nation.  The  defendant's  counsel  have  admitted  that  a  foreign 
sovereign  may  have  relief  in  this  court,  when  he  sues  in  his 
public  character  to  recover  public  property  within  the  jurisdic- 
tion of  this  Court.  But  they  insist  that,  what  is  in  question 
in  this  cause  is  not  any  right  of  property,  but  a  mere  public  and 
political  right,  which,  by  the  constitution  of  Hungary,  is  not 
absolute  in  the  Sovereign,  but  subject  to  the  control  and  direc- 
tion of  the  Diet  of  that  kingdom.  Such  a  right,  they  say,  is 
beyond  the  jurisdiction  of  this  Court. 

If  the  question  related  merely  to  an  affair  of  state,  it  would 


EMPEROR  OF  AUSTRIA  v.  DAY.  25 

be  a  question,  not  of  law,  but  for  mere  political  discussion.  But 
the  regulation  of  the  coin  and  currency  of  every  State  is  a  great 
prerogative  right  of  the  sovereign  power.  It  is  not  a  mere 
municipal  right,  or  a  mere  question  of  municipal  law.  Money  is 
the  medium  of  commerce  between  all  civilized  nations;  there- 
fore, the  prerogative  of  each  sovereign  state  as  to  money  is 
but  a  great  public  right  recognised  and  protected  by  the  law 
of  nations.  A  public  right,  recognised  by  the  law  of  nations, 
is  a  legal  right ;  because  the  law  of  nations  is  part  of  the  common 
law  of  England. 

These  propositions  are  supported  by  unquestionable  author- 
ity. In  the  modern  version  of  Blackstone's  Commentaries  (4 
Steph.  Com.  282),  it  is  laid  down  (and  it  has  so  always  been  held 
in  our  courts)  that  the  law  of  nations,  wherever  any  question 
arises,  which  is  properly  the  object  of  its  jurisdiction,  is  adopted 
in  its  full  extent  by  the  common  law  of  England,  and  held  to  be 
part  of  the  law  of  the  land.  Acts  of  Parliament,  which  have 
been  from  time  to  time  made  to  enforce  this  universal  law,  or  to 
facilitate  the  execution  of  its  decisions,  are  not  considered  as 
introductive  of  any  new  rule,  but  merely  declaratory  of  the  old 
fundamental  constitution  of  the  kingdom,  without  which  it  must 
cease  to  be  part  of  the  civilized  world. 

To  apply  these  acknowledged  principles  of  the  law  of  nations 
and  law  of  England  to  the  present  case,  it  appears  that  the 
British  Parliament,  by  the  Act  11  Geo.  4  &  1  Wm.  4,  c.  66,  has 
enacted,  that  the  forgery  or  counterfeiting  the  paper  money  of 
any  foreign  sovereign  or  state  is  a  felony  punishable  by  the  law 
of  England.  This  statute  is  a  legislative  recognition  of  the  gen- 
eral right  of  the  sovereign  authority  in  foreign  states  to  the 
assistance  of  the  laws  of  this  country,  to  protect  their  rights  as 
to  the  regulation  of  their  paper  money  as  well  as  their  coin, 
and  to  punish,  by  the  law  of  England,  offences  against  that 
power. 

The  friendly  relations  between  civilized  countries  require,  for 
their  safety,  the  protection  by  municipal  law  of  an  existing 
sovereign  right  of  this  kind  recognised  by  the  law  of  nations. 
It  appears  from  the  evidence  of  the  defendant  Kossuth  himself, 
that  the  present  plaintiff  is  in  possession  of  the  supreme  power 
in  Hungary,  and  that  the  property  now  in  question,  which  this 
defendant  has  caused  to  be  manufactured  in  order,  at  some 
future  time,  to  issue  it  as  the  public  paper  money  of  the  State 
of  Hnngary,  is  not  intended  to  be  immediately  used  for  that 


26          INTERNATIONAL  AND  MUNICIPAL  LAW. 

purpose,  because  of  the  existing  power  of  the  plaintiff.  But  it 
also  appears,  that  the  paper  so  manufactured  is  now  in  the  pos- 
session and  power  of  both  the  defendants,  ready  to  be  used, 
when  the  defendant  Kossuth  shall  think  fit,  for  a  purpose  ad- 
verse to  the  existing  right  of  the  plaintiff. 

The  manufactured  paper  in  question,  therefore,  is  property 
which  has  been  made  for  no  other  purpose,  and  can  be  used  for 
no  other  purpose,  except  one  hostile  to  the  sovereign  rights 
of  the  plaintiff.  It  is  not  property  of  a  kind  which,  like  warlike 
weapons  or  other  property,  may  be  lawfully  used  for  other 
purposes.  And  if  the  avowed  and  single  purpose,  for  which 
this  property  is  now  in  the  hands  of  the  defendants,  be  a  purpose 
hostile  to  the  plaintiff's  rights,  if  this  Court  were  to  refuse  its 
interference,  the  refusal  would  amount  to  a  decision  that  it 
has  no  jurisdiction  to  protect  the  legal  right  of  the  plaintiff — 
a  legal  right  recognised  by  the  law  of  nations,  and,  therefore, 
by  the  law  of  England. 

But  it  has  been  said,  that  the  right  of  the  plaintiff  is  not  an 
absolute  right,  but  is  subject  to  the  control  of  the  Diet  of  Hun- 
gary. The  prerogative  rights  of  the  Crown  of  England  are  all 
directly  or  indirectly  subject  to  control  of  Parliament,  and  the 
sovereign  rights  in  most  other  nations  are  subject  to  some  con- 
trol or  limitation,  yet  they  are  not  therefore  the  less  actual 
rights ;  and  it  is  at  the  suit  of  the  sovereign  that  they  are  to  be 
protected  by  the  law. 

Then,  it  is  said,  that  the  defendant  Kossuth  contemplates  the 
overthrow  of  the  existing  right  of  the  plaintiff,  and  that  when 
it  is  overthrown,  and  the  power  transferred  to  himself  or  to 
some  other  body,  which  shall  sanction  the  use  of  this  paper  as 
the  current  money  of  the  kingdom  of  Hungary,  he  will  then 
be  entitled  to  use  it;  and  therefore,  that  this  Court  ought  not 
now  to  interfere. 

To  this  argument  the  answer  is,  that  this  Court,  like  other 
public  tribunals,  can  deal  only  with  existing  laws  and  existing 
governments.  Obedience  to  existing  laws  and  to  existing  gov- 
ernments, by  which  alone  the  laws  can  be  enforced,  are  purposes 
essential  to  the  distribution  of  justice,  and  to  the  maintenance 
of  civil  society.  Therefore,  if  by  the  existing  laws  the  plaintiff 
has  the  right  which  he  asserts,  and  if  the  defendants  have  made 
and  have  now  in  their  possession  the  property  in  question,  which 
has  been  made  and  now  is  in  their  hands  for  no  other  purpose 
than  one  hostile  to  the  legal  rights  of  the  plaintiff,  the  legal 


EMPEROR  OF  AUSTRIA  v.  DAY.  27 

right  of  the  plaintiff  ought  to  be  protected  by  the  interference 
of  this  Court.  This  right  of  the  plaintiff  is  clear  on  principle, 
unless  the  Court  is  to  abandon  its  protective  jurisdiction.  It  is 
clear,  also,  upon  authority.  In  the  case  of  Farina  v.  Silverlock, 
1  K.  &  J.  509,  an  injunction  was  granted  against  a  printer, 
who  had  made  and  printed  papers  which  he  had  in  his  posses- 
sion, merely  because  they  might  be  used,  and  were  ready  to  be 
used,  in  such  a  manner  as  to  violate  the  legal  right  of  the 
plaintiff,  although  they  were  not  in  fact  actually  used  for  that 
purpose. 

Foreign  States  at  peace  with  this  country  have  always  been 
held  entitled  to  the  assistance  of  the  law  of  England  to  vindi- 
cate and  protect  their  rights,  and  to  punish  offenders  against 
those  acknowledged  public  privileges  recognised  by  the  law  of 
nations.  Even  the  sovereign  power,  under  a  revolutionary  gov- 
ernment recognized  for  the  time  by  the  Crown  of  England  as 
an  existing  government,  has  had  its  rights  protected,  and  of- 
fenders against  those  rights  punished  by  prosecution  in  the  courts 
of  England.  The  prosecution  and  conviction  of  M.  Peltier,  for 
a  libel  on  the  First  Consul  of  France,  proceeded  on  this  prin- 
ciple. In  earlier  times,  Lord  George  Gordon  was  tried  and 
convicted  for  a  libel  on  the  Queen  of  France. 

These  rights  of  foreign  powers  may  be  for  a  time  suppressed, 
and  the  law  may  be  silent  during  the  flagrance  of  rebellion  and 
revolution,  when  rights,  both  public  and  private,  are  overturned 
and  destroyed  during  the  crimes  and  calamities  of  civil  war. 

But  where,  as  in  the  present  case,  the  existing  rights  of  the 
plaintiff,  as  Sovereign  of  Hungary,  are  recognised  by  the  Crown 
of  England,  the  relief  which  he  seeks  in  this  cause,  is  for  the 
protection  of  a  legal  right  of  universal  public  importance 
against  the  acts  of  the  defendants. 

That  protection  can  only  be  effectually  afforded  by  the  relief 
prayed  for  in  this  suit;  and  there  must  be  a  decree  against  the 
defendants,  according  to  the  prayer  of  the  bill. 


28          INTERNATIONAL  AND  MUNICIPAL  LAW. 

WEST  RAND  CENTRAL  GOLD  MINING  COMPANY, 
LIMITED  v.  THE  KING. 

KING'S  BENCH  DIVISION  OF  THE  HIGH  COURT  OF  JUSTICE  OF  ENGLAND. 

1905. 
Law  Reports  [1905]  2  K.  B.  391. 

[The  statement  of  facts  and  the  first  part  of  the  opinion  are 
printed,  post,  98.] 

LORD  ALVERSTONE,  C.  J.  .  .  .  The  second  proposition 
urged  by  Lord  Robert  Cecil,  that  international  law  forms  part  of 
the  law  of  England,  requires  a  word  of  explanation  and  comment. 
It  is  quite  true  that  whatever  has  received  the  common  consent 
of  civilized  nations  must  have  received  the  assent  of  our  country, 
and  that  to  which  we  have  assented  along  with  other  nations  in 
general  may  properly  be  called  international  law,  and  as  such 
will  be  acknowledged  and  applied  by  our  municipal  tribunals 
when  legitimate  occasion  arises  for  those  tribunals  to  decide 
questions  to  which  doctrines  of  international  law  may  be  relevant. 
But  any  doctrine  so  invoked  must  be  one  really  accepted  as  bind- 
ing between  nations,  and  the  international  law  sought  to  be 
applied  must,  like  anything  else,  be  proved  by  satisfactory  evi- 
dence, which  must  show  either  that  the  particular  proposition 
put  forward  has  been  recognised  and  acted  upon  by  our  country, 
or  that  it  is  of  such  a  nature,  and  has  been  so  widely  and  gen- 
erally accepted,  that  it  can  hardly  be  supposed  that  any  civilized 
State  would  repudiate  it.  The  mere  opinions  of  jurists,  however 
eminent  or  learned,  that  it  ought  to  be  so  recognised,  are  not  in 
themselves  sufficient.  They  must  have  received  the  express  sanc- 
tion of  international  agreement,  or  gradually  have  grown  to  be 
part  of  international  law  by  their  frequent  practical  recognition 
in  dealings  between  various  nations.  We  aclo^t  the  language 
used  by  Lord  Russell  of  Killowen  in  his  address  at  Saratoga  in 
1896  on  the  subject  of  international  law  and  arbitration: 
"What,  then,  is  international  law?  I  know  no  better  definition 
of  it  than  that  it  is  the  sum  of  the  rules  or  usages  which  civilized  . 
States  have  agreed  shall  be  binding  upon  them  in  their  dealings 
with  one  another."  In  our  judgment,  the  second  proposition 
for  which  Lord  Robert  Cecil  contended  in  his  argument  before 
us  ought  to  be  treated  as  correct  only  if  the  term  ' '  international 
law"  is  understood  in  the  sense,  and  subject  to  the  limitations 
of  application,  which  we  have  explained.  The  authorities  which 


MORTENSEN  v.  PETERS.  29 

he  cited  in  support  of  the  proposition  are  entirely  in  accord  with 
and,  indeed,  well  illustrate  our  judgment  upon  this  branch  of 
the  arguments  advanced  on  behalf  of  the  suppliants;  for  in- 
stance, Barbuit's  Case,  Gas.  t.  Tal.  281,  Triquet  v.  Bath,  3  Burr. 
1478,  and  Heathfield  v.  Chilton,  4  Burr.  2016,  are  cases  in  which 
the  Courts  of  law  have  recognised  and  have  given  effect  to  the 
privilege  of  ambassadors  as  established  by  international  law. 
But  the  expressions  used  by  Lord  Mansfield  when  dealing  with 
the  particular  and  recognised  rule  of  international  law  on  this 
subject,  that  the  law  of  nations  forms  part  of  the  law  of  Eng- 
land, ought  not  to  be  construed  so  as  to  include  as  part  of  the 
law  of  England  opinions  of  text-writers  upon  a  question  as  to 
which  there  is  no  evidence  that  Great  Britain  has  ever  assented, 
and  a  fortiori  if  they  are  contrary  to  the  principles  of  her  laws 
as  declared  by  her  Courts.  The  cases  of  Wolff  v.  Oxholm,  6  M. 
&  S.  92 ;  18  R.  R.  313,  and  Reg.  v.  Keyn,  2  Ex.  D.  63,  are  only 
illustrations  of  the  same  rule — namely,  that  questions  of  inter- 
national law  may  arise,  and  may  have  to  be  considered  in  con- 
nection with  the  administration  of  municipal  law.  .  .  . 


MORTENSEN  v.  PETERS. 

HIGH  COURT  or  JUSTICIARY  OF  SCOTLAND.     1906. 
14  Scots  Law  Times  Reports,  227. 

THE  LORD  JUSTICE  GENERAL.  The  facts  of  this  case  are  that 
the  appellant  being  a  foreign  subject,  and  master  of  a  vessel 
registered  in  a  foreign  country,  exercised  the  method  of  fishing 
known  as  otter  trawling  at  a  point  within  the  Moray  Firth,  more 
than  three  miles  from  the  shore,  but  to  the  west  of  a  line  drawn 
from  Duncansby  Head  in  Caithness  to  Rattray  Point  in  Aber- 
deenshire ;  that  being  thereafter  found  within  British  territory, 
to  wit,  at  Grimsby,  he  was  summoned  to  the  Sheriff  Court  at 
Dornoch  to  answer  to  a  complaint  against  him  for  having  con- 
travened the  7th  section  of  the  Herring  Fishery  Act,  1889,  and 
the  bye-law  of  the  Fishery  Board,  thereunder  made,  and  was 
convicted.  .  .  . 

My  Lords,  I  apprehend  that  the  question  is  one  of  construe- 
lion  and  of  construction  only.  In  this  Court  we  have  nothing  to 
do  with  the  question  of  whether  the  legislature  has  or  has  not 


30          INTERNATIONAL  AND  MUNICIPAL  LAW. 

done  what  foreign  powers  may  consider  a  usurpation  in  a  ques- 
tion with  them.  Neither  are  we  a  tribunal  sitting  to  decide 
whether  an  act  of  the  legislature  is  ultra  vires  as  in  contraven- 
tion of  generally  acknowledged  principles  of  international  lawr. 
For  us  an  Act  of  Parliament  duly  passed  by  Lords  and  Com- 
mons and  assented  to  by  the  King,  is  supreme,  and  we  are  bound 
to  give  effect  to  its  terms.  The  counsel  for  the  appellant  ad- 
vanced the  proposition  that  statutes  creating  offences  must  be 
presumed  to  apply  (1)  to  British  subjects;  and  (2)  to  foreign 
subjects  in  British  territory;  but  that  short  of  express  enact- 
ment their  application  should  not  be  further  extended.  The 
appellant  is  admittedly  not  a  British  subject,  which  excludes 
(1)  ;  and  he  further  argued  that  the  locus  delicti,  being  in  the  sea 
beyond  the  three-mile  limit,  was  not  within  British  territory; 
and  that  consequently  the  appellant  was  not  included  in  the  pro- 
hibition of  the  statute.  Viewed  as  general  propositions  the  two 
presumptions  put  forward  by  the  appellant  may  be  taken  as  cor- 
rect. This,  however,  advances  the  matter  but  little,  for  like  all 
presumptions  they  may  be  redargued,  and  the  question  remains 
whether  they  have  been  redargued  on  this  occasion. 

The  first  thing  to  be  noted  is  that  the  prohibition  here,  a 
breach  of  which  constitutes  the  offence,  is  not  an  absolute  pro- 
hibition against  doing  a  certain  thing,  but  a  prohibition  against 
doing  it  in  a  certain  place.  Now,  when  a  legislature,  using 
words  of  admitted  generality — "It  shall  not  be  lawful,"  &c., 
"Every  person  who,"  &c. — conditions  an  offence  by  territorial 
limits,  it  creates,  I  think,  a  very  strong  inference  that  it  is,  for 
the  purpose  specified,  assuming  a  right  to  legislate  for  that  ter- 
ritory against  all  persons  whomsoever.  .  .  . 

It  is  said  by  the  appellant  that  all  this  must  give  way  to  the 
consideration  that  International  Law  has  firmly  fixed  that  a 
locus  such  as  this  is  beyond  the  limits  of  territorial  sovereignty ; 
and  that  consequently  it  is  not  to  be  thought  that  in  such  a  place 
the  legislature  could  seek  to  affect  any  but  the  King's  subjects. 

It  is  a  trite  observation  that  there  is  no  such  thing  as  a  stand- 
ard of  International  Law,  extraneous  to  the  domestic  law  of  a 
kingdom,  to  which  appeal  may  be  made.  International  Law,  so 
far  as  this  Court  is  concerned,  is  the  body  of  doctrine  regarding 
the  international  rights  and  duties  of  States  which  has  been 
adopted  and  made  part  of  the  Law  of  Scotland.  Now  can  it  be 
said  to  be  clear  by  the  law  of  Scotland  that  the  locus  here  is 
beyond  what  the  legislature  may  assert  right  to  affect  by  legi* 


NOTE.  31 

lation  against  all  whomsoever  for  the  purpose  of  regulating 
methods  of  fishing?  .  .  .  [The  remaining  portion  of  the 
opinion  is  printed  post,  151.] 

NOTE. — See  Holland,  Studies  in  International  Law,  176;  Westlake, 
Collected  Papers,  498;  Picciotto,  The  Relation  of  International  Law  to 
the  Law  of  England  and  the  United  States;  Wright,  The  Enforcement 
of  International  Law  Through  Municipal  Laio  in  the  United  States; 
Butler,  The  Treaty-Making  Power  of  the  United  States,  II,  sec.  399^ 
Cobbett,  Cases  and  Opinions,  I,  15;  Hyde,  I,  11;  Moore,  Digest,  I,  10. 
In  1765,  Blackstone  said,  "The  law  of  nations  (whenever  any  ques- 
tion arises  which  is  properly  the  subject  of  its  jurisdiction)  is  here 
adopted  in  its  full  extent  by  the  common  law,  and  is  held  to  be  a 
part  of  the  law  of  the  land."  Commentaries,  IV,  67.  To  the  same 
effect  see  Barbuit's  Case  (1736),  Talbot,  281;  Triquet  y.  Bath  (1764), 
3  Burrow,  1478;  and  Heathfield  v.  Chilton  (1767),  4  Burrow,  2015, 
in  which  Lord  Mansfield  said,  "The  privileges  of  public  ministers 
and  their  retinue  depend  upon  the  law  of  nations,  which  is  part  of  the 
common  law  of  England."  The  relation  of  international  and  municipal 
law  was  elaborately  discussed  in  The  Queen  v.  Keyn  (1876),  L.  R.  2 
Exc.  D.  63,  in  which  the  doctrine  of  the  early  cases  was  somewhat 
modified  by  a  closely  divided  court.  For  criticism  of  those  cases  see 
Cobbett,  Cases  and  Opinions,  I,  22.  In  The  Barenfels  (Egypt,  1915), 
1  Br.  &  Col.  P.  C.  122,  129,  the  British  Prize  Court  for  Egypt  said: 

British  law  may  be  said  to  have  always  recognized  Inter- 
national Law  as  a  certain  collection  of  certain  rules  which 
have  become  binding  on  States,  either  by  immemorial  usage 
or  by  virtue  of  agreement.  And  when  once  a  rule  of  law  is 
shewn  to  have  received  the  assent  of  civilized  States  it  will  be 
deemed  to  have  received  also  the  assent  of  the  British  Courts, 
and  will  be  applied  by  Courts  sitting  in  any  capacity  which 
necessitates  the  straying  from  the  ordinary  paths  of  municipal 
laws  to  the  fields  of  the  Law  of  Nations. 

In  the  United  States  prior  to  the  adoption  of  the  Constitution  some 
of  the  States  had  recognized  international  law  as  part  of  their  munici- 
pal law.  For  instance  in  Respublica  v.  De  Longchamps  (1784),  1 
Dallas  (Pa.)  Ill,  116,  it  was  said,  "The  first  crime  in  the  indictment 
is  an  infraction  of  the  law  of  Nations.  This  law,  in  its  full  extent,  is 
part  of  the  law  of  this  State,  and  is  to  be  collected  from  the  practice 
of  different  Nations,  and  the  authority  of  writers."  In  Chisholm  v. 
Georgia  (1792),  2  Dallas,  419,  Chief  Justice  Jay  said,  "Prior  also  to 
that  period  [1789]  the  United  States  had,  by  taking  a  place  among 
the  nations  of  the  earth,  become  amenable  to  the  law  of  nations,  and 
it  was  their  interest  as  well  as  their  duty  to  provide  that  those  laws 
should  be  respected  and  obeyed."  In  Ware  v.  Hylton  (1796),  3  Dallas, 
199,  281,  Justice  Wilson  said,  "When  the  United  States  declared  their 
independence,  they  were  bound  to  receive  the  law  of  nations  in  its 
modern  state  of  purity  and  refinement."  On  the  same  subject  see 
the  charges  delivered  to  the  grand  jury  by  Chief  Justice  Jay  and 


32          INTERNATIONAL  AND  MUNICIPAL  LAW. 

Justice  Wilson  in  Henfield's  Case  (1793),  Wharton,  State  Trials,  49. 
In  the  exercise  of  its  constitutional  power  to  punish  offenses  against 
the  law  of  nations  Congress  passed  an  act  punishing  piracy  as  denned 
by  the  law  of  nations,  and  it  was  held  in  United  States  v.  Smith 
(1820),  5  Wheaton,  153,  that  this  was  a  sufficient  description  of  the 
offense.  In  The  Nereide  (1815),  9  Cranch,  388,  423,  Chief  Justice 
Marshall  said  that  in  the  absence  of  any  act  of  Congress  to  the  con- 
trary, "the  court  is  bound  by  the  law  of  nations,  which  is  a  part  of 
the  law  of  the  land."  The  same  principle  was  set  forth  in  The 
Paquete  Habana  v.  United  States  (1899),  175  U.  S.  677,  694.  See 
also  Maisonnaire  v.  Keating  (1815),  2  Gallison,  325,  334,  and  The 
Amy  Warwick  (1863),  2  Black.  635.  In  Riddell  v.  Fuhrman  (1919), 
233  Mass.  69,  the  Supreme  Judicial  Court  of  Massachusetts  said,  "In- 
ternational law  is  part  of  the  law  of  the  United  States,  and  must  be 
administered  whenever  involved  in  causes  presented  for  determina- 
tion though  in  a  State  court." 

In  Great  Britain  a  legislative  act  is  presumed  not  to  contravene 
international  law,  The  Annapolis  (1861),  30  L.  J.  P.  &  M.  201,  while 
in  the  United  States,  it  was  said  by  Chief  Justice  Marshall  that  "an 
act  of  Congress  ought  never  to  be  construed  to  violate  the  law  of 
nations  if  any  other  possible  construction  remains,"  Murray  v.  The 
Charming  Betsy  (1804),  2  Cranch,  64,  118. 

The  relative  authority  of  municipal  and  international  law  is  of 
particular  importance  in  controversies  before  prize  courts  and  is 
discussed  in  The  Maria  (1799),  1  C.  Robinson,  340;  The  Walsingham 
Packet  (1799),  2  Ib.  77;  The  Recovery  (1807),  6  Ib.  341;  The  Fox 
(1811),  Edwards,  312;  Le  Louis  (1817),  2  Dodson,  239;  The  Neptune 
(1834),  3  Hagg,  129;  Cope  v.  Doherty  (1858),  4  K.  &  J.  367;  and  The 
Zamora  (1916),  L.  R.  [1916]  2  A.  C.  77. 


CHAPTER  n. 
PERSONS  IN  INTERNATIONAL  LAW. 

SECTION  1.    STATES. 

THE  HELENA. 

• 

HIGH  COUBT  OF  ADMIRALTY  OF  ENGLAND.    1801. 
4  C.  Robinson,  3. 

This  was  a  case  of  a  British  ship,  which  had  been  taken,  on 
a  voyage  from  Saffee  to  Lisbon,  by  an  Algerine  corsair,  and  sold 
by  the  Dey  of  Algiers  to  a  merchant  of  Minorca,  and  by  him 
sold,  on  the  surrender  of  the  island  of  Minorca  to  the  British 
arms,  to  the  present  holder,  a  merchant  of  London.  On  coming 
into  the  port  of  London,  a  warrant  had  been  applied  for  to 
arrest  this  ship  on  the  part  of  the  former  British  proprietor ;  but 
the  Court  refused  a  warrant,  and  directed  a  monition  to  issue, 
calling  on  the  possessor  to  show  cause,  why  she  should  not  be 
restored  to  the  former  British  owner.  .  .  . 

Sir  W.  SCOTT  [LORD  STOWELL]  . — This  is  a  question  arising  on 
a  ship,  which  has  been  purchased  by  a  British  merchant  of  a 
Spaniard :  A  claim  is  now  given  on  the  part  of  the  original 
British  proprietor,  on  a  suggestion  that  the  vessel,  while  sailing  as 
his  property,  was  captured  and  carried  into  the  Barbary  States, 
and  there  sold  to  the  Spanish  merchant,  from  whom  the  present 
holder  purchased.  It  is  certainly  true,  as  it  has  been  argued  on 
the  part  of  the  present  possessor,  that  the  Court  is  disposed  to 
pay  particular  respect  to  derivative  titles,  when  fairly  pos- 
sessed; and  it  does  this  on  the  plain  and  general  ground,  that 
there  must  be  a  sequel  of  transactions,  continued  in  a  course  of 
time,  which  shall  be  held  conclusive,  to  cure  antecedent  defects, 
and  to  give  security  to  the  title  of  a  bond  fide  purchaser.  On 
this  foundation  all  property  rests ;  with  respect  to  movables,  the 
period  is  very  short  for  that  effect.  It  is  true,  that  ships  pass 
by  formal  instruments  and  written  documents,  and  therefore  do 

33 


34  PERSONS  IN  INTERNATIONAL  LAW. 

not  come  entirely  under  the  rules  that  apply  to  the  transfer  of 
movable  property;  but  still  they  are  entitled  to  the  equity  of 
similar  considerations  to  a  certain  degree,  particularly  where 
positive  regulations  have  not  intervened  to  exclude  them.  This 
ship  appears  to  have  been  taken  by  the  Algerines,  and  it  is 
argued,  that  the  Algerines  are  to  be  considered  in  this  act  as 
pirates,  and  that  no  legal  conversion  of  property  can  be  derived 
from  their  piratical  seizure.  Certain  it  is,  that  the  African 
States  were  so  considered  many  years  ago,  but  they  have  long 
acquired  the  character  of  established  governments,  with  whom 
we  have  regular  treaties,  acknowledging  and  confirming  to  them 
the  relations  of  legal  states.  So  long  ago  as  the  time  of  Charles 
2d,  Molloy  speaks  of  them  in  language  which,  though  sufficiently 
quaint,  expresses  the  true  character  in  which  they  were  con- 
sidered in  his  time. — 

"Pirates  that  have  reduced  themselves  into  a  government  or 
state,  as  those  of  Algier,  Sally,  Tripoli,  Tunis,  and  the  like,  some 
do  conceive  ought  not  to  obtain  the  rights  or  solemnities  of  war, 
as  other  towns  or  places:  for  though  they  acknowledge  the  su- 
premacy of  the  Port,  yet  all  the  power  of  it  cannot  impose  on 
them  more  than  their  own  wills  voluntarily  consent  to.  The 
famous  Carthage  having  yielded  to  the  victorious  Scipio,  did  in 
some  respect  continue,  and  began  to  raise  up  her  drooping 
towers,  till  the  knowing  Cato  gave  council  for  the  total  extirpa- 
tion ;  out  of  the  ruins  of  which  arose  Tunis,  the  revenging  ghost 
of  that  famous  city,  who  now  what  open  hostility  denied,  by 
thieving  and  piracy  continue;  as  stinking  elders  spring  from 
those  places  where  noble  oaks  have  been  felled ;  and  in  their  art 
are  become  such  masters,  and  to  that  degree,  as  to  disturb  the 
mightiest  nations  on  the  western  empire;  and  though  the  same 
is  small  in  bigness,  yet  is  is  great  in  mischief :  the  consideration 
of  which  put  fire  into  the  breast  of  the  aged  Lewis  IX.  to  burn 
up  this  nest  of  wasps,  who  having  equipt  out  a  fleet  in  his  way 
for  Palestine,  resolved  to  besiege  it :  whereupon  a  council  of  war 
being  called,  the  question  was,  whether  the  same  should  be  sum- 
moned, and  carried,  it  should  not;  for  it  was  not  fit  the  solemn 
ceremonies  of  war  should  be  lavished  away  on  a  company  of 
thieves  and  pirates.  Notwithstanding  this,  Tunis  and  Tripoli 
and  their  Sister  Algier  do  at  this  day  (though  nests  of  pirates) 
obtain  the  right  of  legation.  So  that  now  (though  indeed  pi- 
rates) yet  having  acquired  the  reputation  of  a  government,  they 


THE  HELENA.  35 

cannot  properly  be  esteemed  pirates,  but  enemies."     Molloy, 
p.  33,  sect.  iv. 

Although  their  notions  of  justice,  to  be  observed  between  na- 
tions, differ  from  those  which  we  entertain,  we  do  not,  on  that 
account,  venture  to  call  in  question  their  public  acts.  As  to  the 
mode  of  confiscation,  which  may  have  taken  place  on  this  vessel, 
whether  by  formal  sentence  or  not,  we  must  presume  it  was  done 
regularly  in  their  way,  and  according  to  the  established  custom 
of  that  part  of  the  world.  That  the  act  of  capture  and  con- 
demnation was  not  a  mere  private  act  of  depredation,  is  evident 
from  this  circumstance,  that  the  Dey  himself  appears  to  have 
been  the  owner  of  the  capturing  vessel;  at  least  he  intervenes 
to  guarantee  the  transfer  of  the  ship  in  question  to  the  Spanish 
purchaser.  There  might  perhaps  be  cause  of  confiscation,  ac- 
cording to  their  notions,  for  some  infringment  of  the  regulations 
of  treaty;  as  it  is  by  the  law  of  treaty  only  that  these  nations 
hold  themselves  bound,  conceiving  (as  some  other  people  have 
foolishly  imagined)  that  there  is  no  other  law  of  nations,  but 
that  which  is  derived  from  positive  compact  and  convention. 
Had  there  been  any  demand  for  justice  in  that  country  on  the 
part  of  the  owners,  and  the  Dey  had  refused  to  hear  their  com- 
plaints, there  might  perhaps  have  been  something  more  like  a 
reasonable  ground  to  induce  this  Court  to  look  into  the  transac- 
tion, but  no  such  application  appears  to  have  been  made.  The 
Dey  intervened  in  the  transaction,  as  legalizing  the  act.  The 
transfer  appears,  besides,  to  have  been  passed  in  a  solemn  man- 
ner before  the  public  officer  of  the  Spanish  government,  the 
Spanish  consul ;  and  in  the  subsequent  instance,  the  property  is 
again  transferred  to  the  present  possessor,  under  the  public  sanc- 
tion of  the  Judge  of  the  Vice  Admiralty  Court  of  Minorca. 

Under  these  circumstances,  I  think  it  is  now  much  too  late  for 
this  Court  to  interfere  for  the  purpose  of  annulling  these  several 
aets  of  transfer,  which  appear  to  have  been  made,  in  both  in- 
stances, with  perfect  good  faith  on  the  part  of  the  several  pur- 
chasers, and  for  an  equivalent  consideration.  Without  consider- 
ing at  all  the  question,  what  rule  would  have  been  applied  to 
the  case  of  a  bona  fide  purchase  from  a  piratical  captor,  I  shall 
dismiss  the  party,  and  decree  the  ship  to  be  delivered  to  the 
British  purchaser. 

Party  dismissed. 


36  PERSONS  IN  INTERNATIONAL  LAW. 

CHEROKEE  NATION  v.  STATE  OF  GEORGIA. 

SUPREME  COUBT  OF  THE  UNITED  STATES.    1831. 
5  Peters,  1. 

Motion  for  injunction.  This  case  came  before  the  court  on 
a  motion  on  behalf  of  the  Cherokee  nation  of  Indians,  for  a 
subpoena,  and  for  an  injunction,  to  restrain  the  State  of  Georgia, 
the  governor,  attorney-general,  judges,  justices  of  the  peace, 
sheriffs,  deputy-sheriffs,  constables  and  others  the  officers,  agents 
and  servants  of  that  state,  from  executing  and  enforcing  the 
laws  of  Georgia,  or  any  of  these  laws  or  serving  process,  or 
doing  anything  toward  the  execution  or  enforcement  of  those 
laws,  within  the  Cherokee  territory,  as  designated  by  treaty  be- 
tween the  United  States  and  the  Cherokee  nation.  .  .  . 

The  bill  set  forth  the  complainants  to  be  ' '  the  Cherokee  nation 
of  Indians,  a  foreign  state,  not  owing  allegiance  to  the  United 
States,  nor  to  any  state  of  this  Union,  nor  to  any  power,  po- 
tentate or  state,  other  than  their  own."  "That  from  time  im- 
memorial, the  Cherokee  nation  have  composed  a  sovereign  and 
independent  state,  and  in  this  character  have  been  repeatedly 
recognized,  and  still  stand  recognized,  by  the  United  States,  in 
the  various  treaties  subsisting  between  their  nation  and  the 
United  States."  That  the  Cherokees  were  the  occupants  and 
owners  of  the  territory  in  which  they  now  reside,  before  the 
first  approach  of  the  white  men  of  Europe  to  the  western  conti- 
nent; "deriving  their  title  from  the  Great  Spirit,  who  is  the 
common  father  of  the  human  family,  and  to  whom  the  whole 
earth  belongs. ' '  Composing  the  Cherokee  nation,  they  and  their 
ancestors  have  been  and  are  the  sole  and  exclusive  masters  of 
this  territory,  governed  by  their  own  laws,  usages  and  cus- 
toms. .  .  . 

The  bill  proceeded  to  refer  to  the  treaty  concluded  at  Hope- 
well,  on  the  28th  November,  1785,  "between  the  commissioners 
of  the  United  States  and  head-men  and  warriors  of  all  the 
Cherokees,"  .  .  .  [and  to  various  other  treaties].  By  those 
treaties,  the  bill  asserted,  the  Cherokee  nation  of  Indians  were 
acknowledged  and  treated  with  as  sovereign  and  independent 
states,  within  the  boundary  arranged  by  those  treaties.  .  .  . 

The  bill  averred,  that  this  court  had,  by  the  constitution  and 
laws  of  the  United  States,  original  jurisdiction  of  controversies 
between  a  state  and  a  foreign  state,  without  any  restriction  as 


CHEROKEE  NATION  v.  GEORGIA.  37 

to  the  nature  of  the  controversy;  that  by  the  constitution, 
treaties  were  the  supreme  law  of  the  land.  That  as  a  foreign 
state,  the  complainants  claimed  the  exercise  of  the  powers  of  the 
court  to  protect  them  in  their  rights,  and  that  the  laws  of 
Georgia,  which  interfered  with  their  rights  and  property,  should 
be  declared  void  and  their  execution  be  perpetually  en- 
joined. .  .  . 

MARSHALL,  CH.  J.,  delivered  the  opinion  of  the  court. — This 
bill  is  brought  by  the  Cherokee  nation,  praying  an  injunction  to 
restrain  the  State  of  Georgia  from  the  execution  of  certain  laws 
of  that  state,  which,  as  is  alleged,  go  directly  to  annihilate  the 
Cherokee  as  a  political  society,  and  to  seize  for  the  use  of 
Georgia,  the  lands  of  the  nation  which  have  been  assured  to  them 
by  the  United  States,  in  solemn  treaties  repeatedly  made  and 
still  in  force. 

If  courts  were  permitted  to  indulge  their  sympathies,  a  case 
better  calculated  to  excite  them  can  scarcely  be  imagined.  A 
people,  once  numerous,  powerful,  and  truly  independent,  found 
by  our  ancestors  in  the  quiet  and  uncontrolled  possession  of  an 
ample  domain,  gradually  sinking  beneath  our  superior  policy, 
our  arts  and  our  arms,  have  yielded  their  lands  by  successive 
treaties,  each  of  which  contains  a  solemn  guarantee  of  the  res- 
idue, until  they  retain  no  more  of  their  formerly  extensive  ter- 
ritory than  is  deemed  necessary  to  their  comfortable  subsistence. 
To  preserve  this  remnant,  the  present  application  is  made. 

Before  we  can  look  into  the  merits  of  the  case,  a  preliminary 
inquiry  presents  itself.  Has  this  court  jurisdiction  of  the  cause? 
The  third  article  of  the  constitution  describes  the  extent  of  the 
judicial  power.  The  second  section  closes  an  enumeration  of 
the  cases  to  which  it  is  extended,  with  "controversies"  "between 
a  state  or  citizens  thereof,  and  foreign  states,  citizens  or  sub- 
jects."  A  subsequent  clause  of  the  same  section  gives  the  su- 
preme court  original  jurisdiction,  in  all  cases  in  which  a  state 
shall  be  a  party.  The  party  defendant  may  then  unquestionably 
be  sued  in  this  court.  May  the  plaintiff  sue  in  it?  Is  the  Cher- 
okee nation  a  foreign  state,  in  the  sense  in  which  that  term  is 
used  in  the  constitution?  The  counsel  for  the  plaintiffs  have 
maintained  the  affirmative  of  this  proposition  with  great  earnest- 
ness and  ability.  So  much  of  the  argument  as  was  intended  to 
prove  the  character  of  the  Cherokees  as  a  state,  as  a  distinct 
political  society,  separated  from  others,  capable  of  managing 
its  own  affairs  and  governing  itself,  has,  in  the  opinion  of  a 


38  PERSONS  IN  INTERNATIONAL  LAW. 

majority  of  the  judges,  been  completely  successful.  They  have 
been  uniformly  treated  as  a  state,  from  the  settlement  of  our 
country.  The  numerous  treaties  made  with  them  by  the  United 
States,  recognise  them  as  a  people  capable  of  maintaining  the 
relations  of  peace  and  war,  of  being  responsible  in  their  political 
character  for  any  violation  of  their  engagements,  or  for  any  ag- 
gression committed  on  the  citizens  of  the  United  States,  by  any 
individual  of  their  community.  Laws  have  been  enacted  in  the 
spirit  of  these  treaties.  The  acts  of  our  government  plainly  rec- 
ognise the  Cherokee  nation  as  a  state,  and  the  courts  are  bound 
by  those  acts. 

A  question  of  much  more  difficulty  remains.  Do  the  Cher- 
okees  constitute  a  foreign  state  in  the  sense  of  the  constitution? 
The  counsel  have  shown  conclusively,  that  they  are  not  a  state 
of  the  Union,  and  have  insisted  that,  individually,  they  are 
aliens,  not  owing  allegiance  to  the  United  States.  An  aggregate 
of  aliens  composing  a  state  must,  they  say,  be  a  foreign  state; 
each  individual  being  foreign,  the  whole  must  be  foreign. 

This  argument  is  imposing,  but  we  must  examine  it  more 
closely,  before  we  yield  to  it.  The  condition  of  the  Indians  in 
relation  to  the  United  States  is,  perhaps,  unlike  that  of  any 
other  two  people  in  existence.  In  general,  nations  not  owing  a 
common  allegiance,  are  foreign  to  each  other.  The  term  foreign 
nation  is,  with  strict  propriety,  applicable  by  either  to  the  other. 
But  the  relation  of  the  Indians  to  the  United  States  is  marked 
by  peculiar  and  cardinal  distinctions  which  exist  nowhere  else. 
The  Indian  territory  is  admitted  to  compose  a  part  of  the  United 
States.  In  all  our  maps,  geographical  treaties,  histories  and 
laws,  it  is  so  considered.  In  all  our  intercourse  with  foreign 
nations,  in  our  commercial  regulations,  in  any  attempt  at  inter- 
course between  Indians  and  foreign  nations,  they  are  considered 
as  within  the  jurisdictional  limits  of  the  United  States,  subject 
to  many  of  those  restraints  which  are  imposed  upon  our  own 
citizens.  They  acknowledge  themselves,  in  their  treaties,  to  be 
under  the  protection  of  the  United  States ;  they  admit,  that  the 
United  States  shall  have  the  sole  and  exclusive  rig*it  of  rem 
ing  the  trade  with  them,  and  managing  all  their  affairs  as  t!r 
think  proper;  and  the  Cherokees  in  particular  were  allowed  b, 
the  treaty  of  Hopewell,  which  preceded  the  constitution,  "to 
send  a  deputy  of  their  choice,  whenever  they  think  fit,  to  con- 
gress." Treaties  were  made  with  some  tribes,  by  the  state  of 
New  Fork,  under  a  then  unsettled  construction  of  the  confedera- 


CHEROKEE  NATION  v.  GEORGIA.  39 

tion,  by  which  they  ceded  all  their  lands  to  that  state,  taking 
back  a  limited  grant  to  themselves,  in  which  they  admit  their 
dependence.  Though  the  Indians  are  acknowledged  to  have  an 
unquestionable,  and  heretofore  unquestioned,  right  to  the  lands 
they  occupy,  until  that  right  shall  be  extinguished  by  a  volun- 
tary cession  to  our  government;  yet  it  may  well  be  doubted, 
whether  those  tribes  which  reside  within  the  acknowledged 
boundaries  of  the  United  States  can,  with  strict  accuracy,  be 
denominated  foreign  nations.  They  may,  more  correctly,  per- 
haps, be  denominated  domestic  dependent  nations.  They  occupy 
a  territory  to  which  we  assert  a  title  independent  of  their  will, 
which  must  take  effect  in  point  of  possession,  when  their  right 
of  possession  ceases.  Meanwhile,  they  are  in  a  state  of  pupilage ; 
their  relation  to  the  United  States  resembles  that  of  a  ward  to 
his  guardian.  They  look  to  our  government  for  protection ;  rely' 
upon  its  kindness  and  its  power;  appeal  to  it  for  relief  to  their 
wants;  and  address  the  president  as  their  great  father.  They 
and  their  country  are  considered  by  foreign  nations,  as  well  as 
by  ourselves,  as  being  so  completely  under  the  sovereignty  and 
dominion  of  the  United  States,  that  any  attempt  to  acquire  their 
lands,  or  to  form  a  political  connection  with  them,  would  be 
considered  by  all  as  an  invasion  of  our  territory  and  an  act  of 
hostility.  These  considerations  go  far  to  support  the  opinion, 
that  the  framers  of  our  constitution  had  not  the  Indian  tribes 
in  view,  when  they  opened  the  courts  of  the  Union  to  contro- 
versies between  a  state  or  the  citizens  thereof  and  foreign  states. 
In  considering  this  subject,  the  habits  and  usages  of  the  In- 
dians, in  their  intercourse  with  their  white  neighbors,  ought  not 
to  be  entirely  disregarded.  At  the  time  the  constitution  was 
framed,  the  idea  of  appealing  to  an  American  court  of  justice 
for  an  assertion  of  right  or  a  redress  of  wrong,  had  perhaps 
never  entered  the  mind  of  an  Indian  or  of  his  tribe.  Their  ap- 
peal was  to  the  tomahawk,  or  to  the  government.  This  was  well 
understood  by  the  statesmen  who  framed  the  constitution  of  the 
United  States,  and  might  furnish  some  reason  for  omitting  to 
enumerate  them  among  the  parties  who  might  sue  in  the  courts 
of  the  Union.  Be  this  as  it  may,  the  peculiar  relations  between 
the  United  States  and  the  Indians  occupying  our  territory  are 
such,  that  we  should  feel  much  difficulty  in  considering  them  as 
designated  by  the  term  foreign  state,  were  there  no  other  part 
of  the  constitution  which  might  shed  light  on  the  meaning  of 
these  words.  But  we  think  that  in  construing  them,  consider- 


40  PERSONS  IN  INTERNATIONAL  LAW. 

able  aid  is  furnished  by  that  clause  in  the  eighth  section  of  the 
third  article,  which  empowers  congress  to  "regulate  commerce 
with  foreign  nations,  and  among  the  several  states,  and  with  the 
Indian  tribes."  In  this  clause,  they  are  as  clearly  contradistin- 
guished, by  a  name  appropriate  to  themselves,  from  foreign  na- 
tions, as  from  the  several  states  composing  the  Union.  They 
are  designated  by  a  distinct  appellation;  and  as  this  appellation 
can  be  applied  to  neither  of  the  others,  neither  can  the  appella- 
tion distinguishing  either  of  the  others  be,  in  fair  construction, 
applied  to  them.  The  objects  to  which  the  power  of  regulating 
commerce  might  be  directed,  are  divided  into  three  distinct 
classes — foreign  nations,  the  several  states,  and  Indian  tribes. 
When  forming  this  article,  the  convention  considered  them  as 
entirely  distinct.  We  cannot  assume  that  the  distinction  was 
lost,  in  framing  a  subsequent  article,  unless  there  be  something 
in  its  language  to  authorize  the  assumption. 

The  counsel  for  the  plaintiffs  contend,  that  the  words  ' '  Indian 
tribes"  were  introduced  into  the  article,  empowering  congress 
to  regulate  commerce,  for  the  purpose  of  removing  those  doubts 
in  which  the  management  of  Indian  affairs  was  involved  by  the 
language  of  the  ninth  article  of  the  confederation.  Intending 
to  give  the  whole  power  of  managing  those  affairs  to  the  govern- 
ment about  to  be  instituted,  the  convention  conferred  it  explic- 
itly; and  omitted  those  qualifications  which  embarrassed  the 
exercise  of  it,  as  granted  in  the  confederation.  This  may  be  ad- 
mitted, without  weakening  the  construction  which  has  been  in- 
timated. Had  the  Indian  tribes  been  foreign  nations,  in  the 
view  of  the  convention,  this  exclusive  power  of  regulating  in- 
tercourse with  them  might  have  been,  and,  most  probably,  would 
have  been,  specifically  given,  in  language  indicating  that  idea, 
not  in  language  contradistinguishing  them  from  foreign  nations. 
Congress  might  have  been  empowered  "to  regulate  commerce 
with  foreign  nations,  including  the  Indian  tribes,  and  among 
the  several  states."  This  language  would  have  suggested  itself 
to  statesmen  who  considered  the  Indian  tribes  as  foreign  nations, 
and  were  yet  desirous  of  mentioning  them  particularly. 

It  has  been  also  said,  that  the  same  words  have  not  necessarily 
the  same  meaning  attached  to  them,  when  found  in  different 
parts  of  tho  same  instrument;  their  meaning  is  controlled  by 
the  context.  This  is  undoubtedly  true.  In  common  language, 
the  same  word  has  various  meanings,  and  the  peculiar  sense  in 
which  it  is  used  in  any  sentence,  is  to  be  determined  by  the  con- 


NOTE.  41 

text.  This  may  not  be  equally  true  with  respect  to  proper 
names.  "Foreign  nations"  is  a  general  term,  the  application 
of  which  to  Indian  tribes,  when  used  in  the  American  constitu- 
tion, is,  at  best,  extremely  questionable.  In  one  article,  in  which 
a  power  is  given  to  be  exercised  in  regard  to  foreign  nations 
generally,  and  to  the  Indian  tribes  particularly,  they  are  men- 
tioned as  separate,  in  terms  clearly  contradistinguishing  them 
from  each  other.  We  perceive  plainly,  that  the  constitution,  in 
this  article,  does  not  comprehend  Indian  tribes  in  the  general 
term  "foreign  nations;"  not,  we  presume,  because  a  tribe  may 
not  be  a  nation,  but  because  it  is  not  foreign  to  the  United 
States.  When,  afterwards,  the  term  "foreign  state"  is  intro- 
duced, we  cannot  impute  to  the  convention,  the  intention  to 
desert  its  former  meaning,  and  to  comprehend  Indian  tribes 
within  it,  unless  the  context  force  that  construction  on  us.  We 
find  nothing  in  the  context,  and  nothing  in  the  subject  of  the 
article,  which  leads  to  it. 

The  court  has  bestowed  its  best  attention  on  this  question, 
and,  after  mature  deliberation,  the  majority  is  of  opinion,  that 
an  Indian  tribe  or  nation  within  the  United  States  is  not  a  for- 
eign state,  in  the  sense  of  the  constitution,  and  cannot  maintain 
an  action  in  the  courts  of  the  United  States.  .  .  . 

If  it  be  true,  that  the  Cherokee  nation  have  rights,  this  is  not 
the  tribunal  in  which  those  rights  are  to  be  asserted.  If  it  be 
true,  that  wrongs  have  been  inflicted,  and  that  still  greater  are 
to  be  apprehended,  this  is  not  the  tribunal  which  can  redress 
the  past  or  prevent  the  future.  The  motion  for  an  injunction 
is  denied. 

[MR.  JUSTICE  JOHNSON  and  MR.  JUSTICE  BALDWIN  delivered 
concurring  opinions.  MR.  JUSTICE  THOMPSON  delivered  a  dis- 
senting opinion  in  which  MR.  JUSTICE  STORY  concurred.] 

NOTE. — In  Worcester  v.  Georgia  (1832),  6  Peters,  515,  Chief 
Justice  Marshall  again  made  an  elaborate  analysis  of  the  status  of 
the  Indian  tribes  and  affirmed  the  position  taken  in  Cherokee  Nation 
v.  Georgia  (1831),  5  Peters,  1.  In  the  course  of  his  opinion  he  said: 

The  Indian  nations  had  always  been  considered  as  distinct, 
independent  political  communities,  retaining  their  original 
natural  rights,  as  the  undisputed  possessors  of  the  soil,  from 
time  immemorial,  with  the  single  exception  of  that  imposed 
by  irresistible  power,  which  excluded  them  from  intercourse 
with  any  other  European  potentate  than  the  first  discoverer 
of  the  coast  of  the  particular  region  claimed:  and  this  was 
a  restriction  which  those  European  potentates  imposed  on 


42  PERSONS  IN  INTERNATIONAL  LAW. 

themselves,  as  well  as  on  the  Indians.  The  very  term 
"nation,"  so  generally  applied  to  them,  means  "a  people  dis- 
tinct from  others."  The  constitution,  by  declaring  treaties 
already  made,  as  well  as  those  to  be  made,  to  be  the  supreme 
law  of  the  land,  has  adopted  and  sanctioned  the  previous 
treaties  with  the  Indian  nations,  and  consequently  admits 
their  rank  among  those  powers  who  are  capable  of  making 
treaties.  The  words  "treaty"  and  "nation"  are  words  of  our 
own  language,  selected  in  our  diplomatic  and  legislative  pro- 
ceedings, by  ourselves,  having  each  a  definite  and  well-un- 
derstood meaning.  We  have  applied  them  to  Indians,  as  we 
have  applied  them  to  the  other  nations  of  the  earth.  They 
are  applied  to  all  in  the  same  sense.  . 

The  Cherokee  nation,  then,  is  a  distinct  community,  occupy- 
ing its  own  territory,  with  boundaries  accurately  described,  in 
which  the  laws  of  Georgia  can  have  no  force,  and  which  the 
citizens  of  Georgia  have  no  right  to  enter,  but  with  the  assent 
of  the  Cherokees  themselves,  or  in  conformity  with  treaties 
and  with  the  acts  of  congress.  The  whole  intercourse  between 
the  United  States  and  this  nation  is,  by  our  constitution  and 
laws,  vested  in  the  government  of  the  United  States. 

The  act  of  the  State  of  Georgia,  under  which  the  plaintiff 
in  error  was  prosecuted,  is  consequently  void,  and  the  judg- 
ment a  nullity. 

For  further  discussion  of  the  peculiar  status  of  the  American 
Indians  see  the  concurring  opinion  of  Justice  Baldwin  in  Cherokee 
Nation  v.  Georgia  (1831),  5  Peters,  1,  31,  which  contains  a  valuable 
resume1  of  the  treaties  and  statutes  pertaining  to  the  Indian  tribes 
prior  to  the  adoption  of  the  Constitution;  United  States  v.  Rogers 
(1846),  4  Howard,  567;  Ex  parte  Crow  Dog  (1883),  109  U.  S.  556; 
Elk  v.  Wilkins  (1884),  112  U.  S.  94;  Cherokee  Trust  Funds  (1886), 
117  U.  S.  288;  United  States  v.  Kagama  (1886),  118  U.  S.  375;  Chero- 
kee Nation  v.  Southern  Kansas  Ry.  Co.  (1890),  135  U.  S.  641;  Lone 
Wolf  v.  Hitchcock  (1903),  187  U.  S.  553;  United  States  v.  Sandoval 
(1913),  231  U.  S.  28;  Woodward  v.  de  Graffenried  (1915),  238  U.  S. 
284;  United  States  v.  Nice  (1916),  241  U.  S.  591,  and  a  learned  paper 
by  J.  B.  Thayer  on  "A  People  without  Law,"  in  his  Legal  Essays, 
91.  As  to  the  Crown's  rights  to  the  lands  of  the  Indians  after  the 
cession  of  Canada  by  France  to  Great  Britain,  see  St.  Catherine's 
Milling  and  Lumber  Co.  v.  The  Queen  (1888),  L.  R.  14  A.  C.  46. 


THORINGTON  v.  SMITH.  43 

THORINGTON  v.  SMITH. 

SUPREME  COURT   OF  THE  UNITED   STATES.    1868. 
8  Wallace,  1. 

Appeal  from  the  District  Court  for  the  Middle  District  of 
Alabama. 

[In  1864  Thorington  sold  to  Smith  and  Hartley  some  land  in 
Alabama,  of  which  State  all  the  parties  -were  residents.  The 
purchase  price  was  $45,000,  of  which  $35,000  was  paid  in  Con- 
federate notes  when  the  deed  was  executed.  For  the  remainder 
a  note  was  given  promising  to  pay  to  Thorington  or  bearer  "ten 
thousand  dollars."  At  the  time  of  the  transaction  Alabama  was 
under  the  control  of  the  Confederate  government,  and  the  only 
money  in  circulation  was  Confederate  paper  currency.  Thor- 
ington brought  suit  on  the  note,  and  claimed  payment  of  $10,000 
in  the  only  money  now  current,  i.  e.  lawful  money  of  the  United 
States.  The  defendants  answered  that  the  land  was  worth  only 
$3,000  in  lawful  money,  and  that  the  agreement  of  the  parties 
was  that  the  whole  of  the  purchase  price  should  be  paid  in  the 
only  money  then  circulating  in  Alabama,  i.  e.  Confederate  notes. 
The  court  below  held  that  the  contract  was  illegal  because  to  be 
paid  in  such  notes  and  dismissed  the  bill.] 

The  CHIEF  JUSTICE  [CHASE]  delivered  the  opinion  of  the 
court. 

The  questions  before  us  upon  this  appeal  are  these : 

1.  Can  a  contract  for  the  payment  of  Confederate  notes, 
made  during  the  late  rebellion,  between  parties  residing  within 
the  so-called  Confederate  States,  be  enforced  at  all  in  the  courts 
of  the  United  States?  .  .  .  [The  second  and  third  questions 
are  omitted.] 

The  first  question  is  by  no  means  free  from  difficulty.  It  can- 
not be  questioned  that  the  Confederate  notes  were  issued  in  fur- 
therance of  an  unlawful  attempt  to  overthrow  the  government 
of  the  United  States,  by  insurrectionary  force.  Nor  is  it  a 
doubtful  principle  of  law  that  no  contracts  made  in  aid  of  such 
an  attempt  can  be  enforced  through  the  courts  of  the  country 
whose  government  is  thus  assailed.  But,  was  the  contract  of  the 
parties  to  this  suit  a  contract  of  that  character  ?  Can  it  be  fairly 
described  as  a  contract  in  aid  of  the  rebellion? 


44  PERSONS  IN  INTERNATIONAL  LAW. 

In  examining  this  question  the  state  of  that  part  of  the  coun- 
try in  which  it  was  made  must  be  considered.  It  is  familiar 
history,  that  early  in  1861  the  authorities  of  seven  States,  sup- 
ported, as  was  alleged,  by  popular  majorities,  combined  for  the 
overthrow  of  the  National  Union,  and  for  the  establishment, 
within  its  boundaries,  of  a  separate  and  independent  confedera- 
tion. A  governmental  organization,  representing  these  States, 
was  established  at  Montgomery  in  Alabama,  first  under  a  pro- 
visional constitution,  and  afterwards  under  a  constitution  in- 
tended to  be  permanent.  In  the  course  of  a  few  months,  four 
other  States  acceded  to  this  confederation,  and  the  seat  of  the 
central  authority  was  transferred  to  Richmond,  in  Virginia.  It 
was,  by  the  central  authority  thus  organized,  and  under  its  di- 
rection, that  civil  war  was  carried  on  upon  a  vast  scale  against 
the  government  of  the  United  States  for  more  than  four  years. 
Its  power  was  recognized  as  supreme  in  nearly  the  whole  of  the 
territory  of  the  States  confederated  in  insurrection.  It  was  the 
actual  government  of  all  the  insurgent  States,  except  those  por- 
tions of  them  protected  from  its  control  by  the  presence  of  the 
armed  forces  of  the  National  government. 

What  was  the  precise  character  of  this  government  in  contem- 
plation of  law? 

It  is  difficult  to  define  it  with  exactness.  Any  definition  that 
may  be  given  may  not  improbably  be  found  to  require  limitation 
and  qualification.  But  the  general  principles  of  law  relating  to 
de  facto  government  will,  we  think,  conduct  us  to  a  conclusion 
sufficiently  accurate. 

There  are  several  degrees  of  what  is  called  de  facto  govern- 
ment. 

Such  a  government,  in  its  highest  degree,  assumes  a  character 
very  closely  resembling  that  of  a  lawful  government.  This 
is  when  the  usurping  government  expels  the  regular  au- 
thorities from  their  customary  seats  and  functions,  and  estab- 
lishes itself  in  their  place,  and  so  becomes  the  actual  govern- 
ment of  a  country.  The  distinguishing  characteristic  of  such  a 
government  is,  that  adherents  to  it  in  war  against  the  govern- 
ment de  jure  do  not  incur  the  penalties  of  treason;  and  under 
certain  limitations,  obligations  assumed  by  it  in  behalf  of  the 
country,  or  otherwise,  will,  in  general,  be  respected  by  the  gov- 
ernment de  jure  when  restored. 

Examples  of  this  description  of  government  de  facto  are 
found  in  English  history.  The  statute  11  Henry  VII.,  c.  1,  2 


THORINGTON  v.  SMITH.  45 

British  Stat.  at  Large,  82,  relieves  from  penalties  for  treason 
all  persons  who,  in  defence  of  the  king,  for  the  time  being,  wage 
war  against  those  who  endeavor  to  subvert  his  authority  by 
force  of  arms,  though  warranted  in  so  doing  by  the  lawful 
monarch,  4  [Blackstone's]  Commentaries,  77. 

But  this  is  where  the  usurper  obtains  actual  possession  of  the 
royal  authority  of  the  kingdom :  not  when  he  has  succeeded  only 
in  establishing  his  power  over  particular  localities.  Being  in 
possession,  allegiance  is  due  to  him  as  king  de  facto. 

Another  example  may  be  found  in  the  government  of  England 
under  the  Commonwealth,  first  by  Parliament,  and  afterwards 
by  Cromwell  as  Protector.  It  was  not,  in  the  contemplation  of 
law,  a  government  de  jure,  but  it  was  a  government  de  facto  in 
the  most  absolute  sense.  It  incurred  obligations  and  made  con- 
quests which  remained  the  obligations  and  conquests  of  England 
after  the  restoration.  The  better  opinion  doubtless  is,  that  acts 
done  in  obedience  to  this  government  could  not  be  justly  re- 
garded as  treasonable,  though  in  hostility  to  the  king  de  jure. 
Such  acts  were  protected  from  criminal  prosecution  by  the 
spirit,  if  not  by  the  letter,  of  the  statute  of  Henry  the  Seventh. 
It  was  held  otherwise  by  the  judges  by  whom  Sir  Henry  Vane 
was  tried  for  treason,  6  State  Trials,  119,  in  the  year  following 
the  restoration.  But  such  a  judgment,  in  such  a  time,  has  little 
authority. 

It  is  very  certain  that  the  Confederate  government  was  never 
acknowledged  by  the  United  States  as  a  de  facto  government  in 
this  sense.  Nor  was  it  acknowledged  as  such  by  other  powers. 
No  treaty  was  made  by  it  with  any  civilized  state.  No  obliga- 
tions of  a  National  character  were  created  by  it,  binding  after 
its  dissolution,  on  the  States  which  it  represented,  or  on  the 
National  government.  From  a  very  early  period  of  the  civil  war 
to  its  close,  it  was  regarded  as  simply  the  military  representative 
of  the  insurrection  against  the  authority  of  the  United  States. 

But  there  is  another  description  of  government,  called  also  by 
publicists  a  government  de  facto,  but  which  might,  perhaps,  be 
more  aptly  denominated  a  government  of  paramount  force. 
Its  distinguishing  characteristics  are  (1),  that  its  existence  is 
maintained  by  active  military  power,  within  the  territories,  and 
against  the  rightful  authority  of  an  established  and  lawful  gov- 
ernment; and  (2),  that  while  it  exists,  it  must  necessarily  be 
obeyed  in  civil  matters  by  private  citizens  who,  by  acts  of  obedi- 
ence, rendered  in  submission  to  such  force,  do  not  become  re- 


46  PERSONS  IN  INTERNATIONAL  LAW. 

sponsible,  as  wrongdoers,  for  those  acts,  though  not  warranted 
by  the  laws  of  the  rightful  government.  Actual  governments 
of  this  sort  are  established  over  districts  differing  greatly  in 
extent  and  conditions.  They  are  usually  administered  directly 
by  military  authority,  but  they  may  be  administered,  also,  by 
civil  authority,  supported  more  or  less  directly  by  military  force. 

One  example  of  this  sort  of  government  is  found  in  the  case 
of  Castine,  in  Maine,  reduced  to  British  possession  during  the 
war  of  1812.  From  the  1st  of  September,  1814,  to  the  ratifica- 
tion of  the  treaty  of  peace  in  1815,  according  to  the  judgment 
of  this  court  in  United  States  v.  Rice,  4  Wheaton,  253,  "the 
British  government  exercised  all  civil  and  military  authority 
over  the  place."  "The  authority  of  the  United  States  over  the 
territory  was  suspended,  and  the  laws  of  the  United  States 
could  no  longer  be  rightfully  enforced  there,  or  be  obligatory 
upon  the  inhabitants  who  remained  and  submitted  to  the  con- 
queror. By  the  surrender,  the  inhabitants  passed  under  a  tem- 
porary allegiance  to  the  British  government,  and  were  bound 
by  such  laws,  and  such  only,  as  it  chose  to  recognize  and  im- 
pose." It  is  not  to  be  inferred  from  this  that  the  obligations  of 
the  people  of  Castine  as  citizens  of  the  United  States  were 
abrogated.  They  were  suspended  merely  by  the  presence,  and 
only  during  the  presence,  of  the  paramount  force.  A  like  ex- 
ample is  found  in  the  case  of  Tampico,  occupied  during  the  war 
with  Mexico  by  the  troops  of  the  United  States.  It  was  deter- 
mined by  this  court,  in  Fleming  v.  Page,  9  Howard,  614,  that, 
although  Tampico  did  not  become  a  port  of  the  United  States 
in  consequence  of  that  occupation,  still,  having  come,  together 
with  the  whole  State  of  Tamaulipas,  of  which  it  was  part,  into 
the  exclusive  possession  of  the  National  forces,  it  must  be  re- 
garded and  respected  by  other  nations  as  the  territory  of  the 
United  States.  These  were  cases  of  temporary  possession  of 
territory  by  lawful  and  regular  governments  at  war  with  the 
country  of  which  the  territory  so  possessed  was  part. 

The  central  government  established  for  the  insurgent  States 
differed  from  the  temporary  governments  at  Castine  and  Tam- 
pico, in  the  circumstance,  that  its  authority  did  not  originate 
in  lawful  acts  of  regular  war,  but  it  was  not,  on  that  account, 
less  actual  or  less  supreme.  And  we  think  that  it  must  be 
classed  among  the  governments  of  which  these  are  examples. 
It  is  to  be  observed  that  the  rights  and  obligations  of  a  belliger- 
ent were  conceded  to  it,  in  its  military  character,  very  soon 


THORINGTON  v.  SMITH.  47 

after  the  war  began,  from  motives  of  humanity  and  expediency 
by  the  United  States.  The  whole  territory  controlled  by  it  was 
thereafter  held  to  be  enemies'  territory,  and  the  inhabitants  of 
that  territory  were  held,  in  most  respects,  for  enemies.  To  the 
extent,  then,  of  actual  supremacy,  however  unlawfully  gained, 
in  all  matters  of  government  within  its  military  lines,  the  power 
of  the  insurgent  government  cannot  be  questioned.  That  su- 
premacy did  not  justify  acts  of  hostility  to  the  United  States. 
How  far  it  should  excuse  them  must  be  left  to  the  lawful  gov- 
ernment upon  the  re-establishment  of  its  authority.  But  it 
made  obedience  to  its  authority  in  civil  and  local  matters  not 
only  a  necessity  but  a '  duty.  '  "Without  such  obedience,  civil 
order  was  impossible. 

It  was  by  this  government  exercising  its  power  throughout  an 
immense  territory,  that  the  Confederate  notes  were  issued  early 
in  the  war,  and  these  notes  in  a  short  time  became  almost  ex- 
clusively the  currency  of  the  insurgent  States.  As  contracts  in 
themselves,  except  in  the  contingency  of  successful  revolution, 
these  notes  were  nullities;  for,  except  in  that  event,  there  could 
be  no  payer.  They  bore,  indeed,  this  character  upon  their  face, 
for  they  were  made  payable  only  "after  the  ratification  of  a 
treaty  of  peace  between  the  Confederate  States  and  the  United 
States  of  America."  While  the  war  lasted,  however,  they  had 
a  certain  contingent  value,  and  were  used  as  money  in  nearly 
all  the  business  transactions  of  many  millions  of  people.  They 
must  be  regarded,  therefore,  as  a  currency,  imposed  on  the  com- 
munity by  irresistible  force. 

It  seems  to  follow  as  a  necessary  consequence  from  this  actual 
supremacy  of  the  insurgent  government,  as  a  belligerent,  within 
the  territory  where  it  circulated,  and  from  the  necessity  of 
civil  obedience  on  the  part  of  all  who  remained  in  it,  ,that  this 
currency  must  be  considered  in  courts  of  law  in  the  same  light 
as  if  it  had  been  issued  by  a  foreign  government,  temporarily 
occupying  a  part  of  the  territory  of  the  United  States.  Con- 
tracts stipulating  for  payments  in  this  currency,  cannot  be  re- 
garded for  that  reason  only,  as  made  in  aid  of  the  foreign  in- 
vasion in  the  one  case,  or  of  the  domestic  insurrection  in  the 
other.  They  have  no  necessary  relations  to  the  hostile  govern- 
ment, whether  invading  or  insurgent.  They  are  transactions  in 
the  ordinary  course  of  civil  society,  and,  though  they  may  in- 
directly and  remotely  promote  the  ends  of  the  unlawful  govern- 
ment, are  without  blame,  except  when  proved  to  have  been 


48  PERSONS  IN  INTERNATIONAL  LAW. 

entered  into  with  actual  intent  to  further  invasion  or  insurrec- 
tion. We  cannot  doubt  that  such  contracts  should  be  enforced 
in  the  courts  of  the  United  States,  after  the  restoration  of  peace, 
to  the  extent  of  their  just  obligation.  The  first  question,  there- 
fore, must  receive  an  affirmative  answer.  .  .  . 


NEELY  v.  HENKEL. 

SUPREME  COURT  OF  THE  UNITED  STATES.    1901. 
180  U.  S.  109. 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the 
Southern  District  of  New  York. 

[Neely,  an  employe  of  the  postal  department  of  the  Island  of 
Cuba  while  that  Island  was  occupied  by  the  United  States,  was 
arrested  in  New  York  charged  with  the  embezzlement  and  con- 
version of  money  and  other  public  property  in  his  possession. 
Application  for  his  extradition  was  made  by  the  United  States 
in  accordance  with  the  provisions  of  the  act  of  June  6,  1900, 
governing  the  surrender  of  persons  charged  with  the  commission 
of  certain  offenses  in  "any  foreign  country  or  territory  .  .  . 
occupied  by  or  under  the  control  of  the  United  States."  Neely 
resisted  extradition  on  the  ground  that  Cuba  was  not  a  foreign 
country.] 

MR.  JUSTICE  HARLAN  delivered  the  opinion  of  the  court.    .    .    . 

That  at  the  date  of  the  act  of  June  6,  1900,  the  Island  of 
Cuba  was  "occupied  by"  and  was  "under  the  control  of  the 
United  States"  and  that  it  is  still  so  occupied  and  controlled, 
cannot  be  disputed.  This  court  will  take  judicial  notice  that 
such  were,  at  the  date  named  and  are  now,  the  relations  between 
this  country  and  Cuba.  So  that  the  applicability  of  the  above 
act  to  the  present  case — and  this  is  the  first  question  to  be  ex- 
amined— depends  upon  the  inquiry  whether,  within  its  meaning, 
Cuba  is  to  be  deemed  a  foreign  country  or  territory. 

We  do  not  think  this  question  at  all  difficult  of  solution  if 
regard  be  had  to  the  avowed  objects  intended  to  be  accomplished 
by  the  war  with  Spain  and  by  the  military  occupation  of  that 
Island.  Let  us  see  what  were  those  objects  as  they  are  disclosed 


NEELY  v.  HENKEL.  49 

by  official  documents  and  by  the  public  acts  of  the  representa- 
tives of  the  United  States.    .    .    . 

While  by  the  act  of  April  25,  1898,  declaring  war  between 
this  country  and  Spain,  the  President  was  directed  and  em- 
powered to  use  our  entire  land  and  naval  forces,  as  well  as  the 
militia  of  the  several  States  to  such  extent  as  was  necessary,  to 
carry  such  act  into  effect,  that  authorization  was  not  fpr  the 
purpose  of  making  Cuba  an  integral  part  of  the  United  States 
but  only  for  the  purpose  of  compelling  the  relinquishment  by 
Spain  of  its  authority  and  government  in  that  Island  and  the 
withdrawal  of  its  forces  from  Cuba  and  Cuban  waters.  The 
legislative  and  executive  branches  of  the  Government,  by  the 
joint  resolution  of  April  20,^898,  expressly  disclaimed  any  pur- 
pose to  exercise  sovereignty,  jurisdiction  or  control  over  Cuba 
"except  for  the  pacification  thereof,"  and  asserted  the  deter- 
mination of  the  United  States,  that  object  being  accomplished, 
to  leave  the  government  and  control  of  Cuba  to  its  own  people. 
All  that  has  been  done  in  relation  to  Cuba  has  had  that  end  in 
view  and,  so  far  as  the  court  is  informed  by  the  public  history 
of  the  relations  of  this  country  with  that  Island,  nothing  has 
been  done  inconsistent  with  the  declared  object  of  the  war  with 
Spain. 

Cuba  is  none  the  less  foreign  territory,  within  the  meaning  of 
the  act  of  Congress,  because  it  is  under  a  Military  Governor 
appointed  by  and  representing  the  President  in  the  work  of 
assisting  the  inhabitants  of  that  island  to  establish  a  government 
of  their  own,  under  which,  as  a  free  and  independent  people, 
they  may  control  their  own  affairs  without  interference  by  other 
nations.  The  occupancy  of  the  Island  by  troops  of  the  United 
States  was  the  necessary  result  of  the  war.  That  result  could 
not  have  been  avoided  by  the  United  States  consistently  with 
the  principles  of  international  law  or  with  its  obligations  to  the 
people  of  Cuba. 

It  is  true  that  as  between  Spain  and  the  United  States — in- 
deed, as  between  the  United  States  and  all  foreign  nations — 
Cuba,  upon  the  cessation  of  hostilities  with  Spain  and  after  the 
Treaty  of  Paris  was  to  be  treated  as  if  it  were  conquered  terri- 
tory. But  as  between  the  United  States  and  Cuba  that  Island 
is  territory  held  in  trust  for  the  inhabitants  of  Cuba  to  whom 
it  rightfully  belongs  and  to  whose  exclusive  control  it  will  be 
surrendered  when  a  stable  government  shall  have  been  estab- 
lished by  their  voluntary  action. 


50  PERSONS  IN  INTERNATIONAL  LAW. 

In  his  message  to  Congress  of  December  6,  1898,  the  President 
said  that  "as  soon  as  we  are  in  possession  of  Cuba  and  have 
pacified  the  Island,  it  will  be  necessary  to  give  aid  and  direction 
to  its  people  to  form  a  government  for  themselves,"  and  that 
"until  there  is  complete  tranquillity  in  the  Island  and  a  stable 
government  inaugurated,  military  occupation  will  be  con- 
tinued." Nothing  in  the  Treaty  of  Paris  stands  in  the  way  of 
this  declared  object,  and  nothing  existed,  at  the  date  of  the 
passage  of  the  act  of  June  6,  1900,  indicating  any  change  in  the 
policy  of  our  Government  as  defined  in  the  joint  resolution  of 
April  20,  1898.  In  reference  to  the  declaration  in  that  resolu- 
tion of  the  purposes  of  the  United  States  in  relation  to  Cuba, 
the  President  in  his  annual  message  of  December  5,  1899,  said 
that  the  pledge  contained  in  it  "is  of  the  highest  honorable 
obligation,  and  must  be  sacredly  kept."  Indeed,  the  Treaty 
of  Paris  contemplated  only  a  temporary  occupancy  and  control 
of  Cuba  by  the  United  States.  While  it  was  taken  for  granted 
by  the  treaty  that  upon  the  evacuation  by  Spain,  the  island 
would  be  occupied  by  the  United  States,  the  treaty  provided 
that  "so  long  as  such  occupation  shall  last"  the  United  States 
should  "assume  and  discharge  the  obligations  that  may,  under 
international  law,  result  from  the  fact  of  its  occupation  for  the 
protection  of  life  and  property."  It  further  provided  that  any 
obligations  assumed  by  the  United  States,  under  the  treaty, 
with  respect  to  Cuba,  were  "limited  to  the  time  of  its  occupancy 
thereof,"  but  that  the  United  States,  upon  the  termination  of 
such  occupancy,  would  "advise  any  government  established  in 
the  Island  to  assume  the  same  obligations."  .  .  . 

NOTE. — The  Classification  of  States. — Writers  upon  politics  and 
government  have  made  many  elaborate  classifications  of  states  based 
chiefly  upon  their  forms  of  government.  From  the  standpoint  of 
international  law  these  differences  in  form  may  be  disregarded  except 
in  so  far  as  they  affect  international  relations.  As  entities  possessed 
of  international  rights  and  subject  to  international  obligations,  states 
are  the  subjects  of  international  law.  Those  rights  and  obligations 
do  not  depend  upon  the  form  of  their  internal  organization,  although 
their  ability  to  assert  the  one  and  to  discharge  the  other  may  be 
much  affected  thereby.  Neither,  in  theory,  do  the  rights  and  obliga- 
tions of  a  state  depend  upon  its  physical  power.  "No  principle  of 
general  law,"  said  Chief  Justice  Marshall,  "is  more  universally  ac- 
knowledged than  the  perfect  equality  of  nations.  Russia  and  Geneva 
have  equal  rights."  The  Antelope  (1825)  10  Wheaton,  66;  Westlake, 
Collected  Papers,  ch.  vii;  Dickinson,  The  Equality  of  States  in 
International  Law,  but  compare  Hicks,  "The  Equality  of  Nations," 


NOTE.  51 

Proceedings,  American  Society  of  International  Law,  1909,  238. 
With  rights  go  obligations,  and  a  state  which  fails  to  provide 
for  the  discharge  of  its  international  responsibilities  is  neverthe- 
less internationally  liable.  It  is  the  duty  of  every  member  of 
the  family  of  nations  to  provide  itself  with  such  a  governmental 
organization  as  will  enable  it  to  meet  all  those  duties  and  ob- 
ligations which  its  position  imposes  upon  it.  The  United  States  is 
an  unhappy  example  of  failure  in  this  regard.  It  has  several  times 
happened,  notably  in  the  case  of  the  Italian  subjects  who  were  lynched 
at  New  Orleans  in  1891,  that  the  Federal  Government  has  had  to 
confess  that  it  owed  duties  which  it  was  unable  to  discharge.  In  the 
New  Orleans  case,  the  Government  of  Italy  with  perfect  right  demanded 
that  the  guilty  parties  be  prosecuted,  but  the  State  Department  an- 
swered that  under  the  American  constitutional  system  such  offenses 
were  within  the  exclusive  jurisdiction  of  the  States.  The  Federal 
Government,  however,  paid  a  money  indemnity  to  the  families  of  the 
murdered  men.  President  Harrison,  who  was  then  in  office,  recom- 
mended that  the  Federal  courts  be  given  jurisdiction  over  all  cases 
involving  a  violation  of  treaty  rights.  As  yet  Congress  has  taken  no 
action  in  the  matter,  thus  leaving  the  Federal  Government  in  what 
President  Taft  has  described  as  "a  pusillanimous  position."  See  Bor- 
chard,  sees.  82,  89,  90  and  91,  and  authorities  cited.  On  all  that  has 
to  do  with  international  responsibility  for  the  protection  of  aliens, 
Borchard  is  the  best  guide. 

Since  the  Constitution  of  the  United  States  vests  the  complete  con- 
trol of  foreign  affairs  in  the  Federal  Government,  the  States  are 
unknown  in  international  relations,  but  some  of  the  States  of  the 
German  Empire  retained  the  right  to  act  directly  in  international 
affairs.  Under  the  constitution  of  the  German  republic  adopted  in 
1919,  the  control  of  all  foreign  affairs  has  been  practically  centralized 
in  Berlin.  Until  the  outbreak  of  the  Great  War,  the  British  Empire 
was  always  treated  as  one  international  unit,  but  in  consequence  of 
the  part  played  in  the  war  by  the  self-governing  dominions  and  the 
Empire  of  India,  they  were  given  independent  representation* at  the 
Peace  Conference,  in  the  Council  and  Assembly  of  the  League  of 
Nations,  and  at  various  international  conferences  which  have  been 
held  for  the  consideration  of  questions  growing  out  of  the  war.  They 
were  also  independently  represented  at  the  Washington  Conference 
on  the  Limitation  of  Armament.  Sometimes  however  a  delegate 
has  represented  more  than  one  section,  as  in  the  negotiation  of  peace 
between  the  Allies  and  Austria  in  which  Viscount  Milner  represented 
both  Great  Britain  and  the  Union  of  South  Africa.  In  practice  this 
representation  has  proven  to  be  real  and  not  nominal,  and  on  many 
important  questions  delegates  from  the  various  portions  of  the  Em- 
pire did  not  vote  as  a  unit.  On  the  classification  of  states,  see  Bonfils 
(Fauchille),  sec.  165;  Garner,  Introduction  to  Political  Science,  chap- 
ters v,  vi  and  vii;  Oppenheim,  I,  Part  I,  ch.  i;  Cobbett,  Cases  and 
Opinions,  1,  42;  Hyde,  I,  23;  Moore,  Digest,  I,  21. 

The  position  of  the  Papacy  has  been  the  subject  of   frequent   dis- 
cussion.    See  Bonfils   (Fauchille),  sec.   370,  arguing  that  the  Papacy 

A 

"Jrue  only  in  the  sense  that  the  Covenant  of 
the  League  makes  them  eligible  to  election  to  the 
Council.  None  has  yet  been  elected. 


52  PERSONS  IN  INTERNATIONAL  LAW. 

is  a  member  of  the  community  of  states,  and  contra,  Oppenheim,  I, 
157,  Wheaton  (Phillipson),  56,  and  a  scholarly  article  by  Dr.  A.  Pearce- 
Higgins,  "The  Papacy  and  International  Law,"  in  Journal  of  the  Society 
of  Comparative  Legislation,  N.  s.  IX,  252.  Since  the  Pope's  legal  status 
is  based  upon  the  Italian  Law  of  Guarantees  of  May  13,  1871,  a  meas- 
ure against  which  the  Papacy  still  protests  and  the  continuance  of 
which  rests  in  the  discretion  of  the  Italian  Government,  and  since 
membership  in  the  family  of  nations  is  at  the  present  time  always 
associated  with  sovereignty  over  definite  territory,  it  is  difficult  to 
find  a  secular  basis  for  the  recognition  of  a  purely  secular  pre- 
tension. This  seems  to  have  been  the  riew  of  the  First  Hague  Con- 
ference, which  refused  to  admit  the  Papal  envoy  to  membership. 

Recognition. — Recognition  that  a  state  possesses  those  qualities  or 
characteristics  which  are  necessary  to  international  intercourse  is  a 
prerequisite  to  its  acceptance  as  a  member  of  the  family  of  nations. 
Such  recognition  does  not  create  the  state  as  a  state,  but  merely 
acknowledges  an  existing  fact.  Whether  a  community  is  entitled  to 
recognition  is  not  always  easy  to  determine.  In  the  seventeenth 
century,  the  nations  of  Europe  were  in  much  doubt  as  to  whether 
the  Turks  and  Algerians  should  be  treated  as  pirates  or  as  sovereign 
powers,  Marsden,  Law  and  Custom  of  the  Sea,  I,  xxvii.  Since  the 
recognition  of  a  new  state  or  a  new  government  is  fundamentally 
a  political  act,  it  seldom  presents  questions  of  a  justiciable  nature 
which  the  courts  will  undertake  to  decide.  The  principles  which 
should  govern  the  conduct  of  the  political  departments  of  the  govern- 
ment in  according  or  withholding  recognition  of  independence  have 
nowhere  been  better  stated  than  in  the  letter  of  August  24,  1818  from 
John  Quincy  Adams,  Secretary  of  State,  to  President  Monroe.  Re- 
ferring to  the  revolts  against  Spain  in  South  America,  he  said: 

There  is  a  stage  in  such  contests  when  the  parties  strug- 
gling for  independence  have,  as  I  conceive,  a  right  to  demand 
its  acknowledgment  by  neutral  parties,  and  when  the  ac- 
knowledgment may  be  granted  without  departure  from  the 
obligations  of  neutrality.  It  is  the  stage  when  independence 
is  established  as  a  matter  of  fact  so  as  to  leave  the  chances  of 
the  opposite  party  to  recover  their  dominion  utterly  des- 
perate. The  neutral  nation  must,  of  course,  judge  for  itself 
when  this  period  has  arrived;  and  as  the  belligerent  nation 
has  the  same  right  to  judge  for  itself,  it  is  very  likely  to 
judge  differently  from  the  neutral  and  to  make  it  a  cause 
or  pretext  for  war,  as  Great  Britain  did  expressly  against 
France  in  our  Revolution,  and  substantially  against  Holland. 
If  war  thus  results  in  point  of  fact  from  the  measure  of  recog- 
nizing a  contested  independence,  the  moral  right  or  wrong 
of  the  war  depends  upon  the  justice  and  sincerity  and  pru- 
dence with  which  the  recognizing  nation  took  the  step.  I 
am  satisfied  that  the  course  of  the  South  Americans  as  far  as 
it  consists  of  the  assertion  of  independence  against  Spain,  is 
just.  But  the  justice  of  a  cause,  however  it  may  enlist  in- 
dividual feelings  in  its  favor,  is  not  sufficient  to  justify  third 


NOTE.  53 

parties  in  siding  with  it.  The  fact  and  the  right  combined 
can  alone  authorize  a  neutral  to  acknowledge  a  new  and  dis- 
puted sovereignty.  The  neutral  may,  indeed,  infer  the  right 
from  the  fact,  but  not  the  fact  from  the  right. 

Moore,  Digest,  I,  78. 

A  new  state  which  establishes  itself  by  successful  revolution  does 
not  derive  its  life  from  the  treaty  by  which  the  parent  state  recog- 
nizes its  independence.  Whatever  the  language  employed,  such  a  treaty 
is  in  effect  an  acknowledgment  that  the  new  state  has  ceased  to 
be  under  the  jurisdiction  of  the  parent  state.  Hence  the  independence 
of  the  United  States  is  held  to  date  from  1776  and  not  from  the 
treaty  of  peace  with  Great  Britain  in  1783,  Ware  v.  Hylton  (1796), 
3  Dallas,  199,  227;  Mcllvaine  v.  Coxe's  Lessee  (1808),  4  Cranch,  209, 
212;  Harcourt  v.  Gaillard  (1827),  12  Wheaton,  523,  527;  United  States 
v.  Repentigny  (1866).  5  Wallace,  211. 

Recognition  is  often  confused  with  intervention.  When  France 
recognized  the  independence  of  the  United  States  in  1778,  the  fortunes 
of  the  rebelling  colonies  were  at  a  low  ebb  and  there  was  little  prospect 
that  they  would  be  able  to  establish  their  independence.  Still  less 
had  Panama,  which  rebelled  against  Colombia  on  November  3,  1903, 
made  itself  an  independent  state  when  it  was  recognized  by  Presi- 
dent Roosevelt  twelve  days  later.  Neither  France  nor  the  United 
States  could  "recognize"  what  did  not  exist.  Both  cases  were  ex- 
amples of  intervention.  In  his  message  of  January  4,  1904,  President 
Roosevelt  described  a  clear  case  of  intervention  although  he  persisted 
in  calling  it  recognition.  He  said: 

By  the  unanimous  action  of  its  people,  without  the  firing 
of  a  shot — with  a  unanimity  hardly  before  recorded  in  any 
similar  case — the  people  of  Panama  declared  themselves  an 
independent  republic.  The  recognition  by  this  Government 
was  based  upon  a  state  of  facts  in  no  way  dependent  for  its 
justification  upon  our  action  in  ordinary  cases.  I  have 
not  denied,  nor  do  I  wish  to  deny,  either  the  validity  or  the 
propriety  of  the  general  rule  that  a  new  state  should  not  be 
recognized  as  independent  till  it  has  shown  its  ability  to 
maintain  its  independence.  This  rule  is  derived  from  the 
principle  of  non-intervention,  and  as  a  corollary  of  that  prin- 
ciple has  generally  been  observed  by  the  United  States.  But, 
like  the  principle  from  which  it  is  deduced,  the  rule  is  sub- 
ject to  exceptions;  and  there  are  in  my  opinion  clear  and  im- 
perative reasons  why  a  departure  from  it  was  justified  and 
even  required  in  the  present  instance.  These  reasons  em- 
brace, first,  our  treaty  rights;  second,  our  national  interests 
and  safety;  and,  third,  the  interests  of  collective  civilization. 

The  comment  of  the  Australian  jurist  Dr.  Pitt  Cobbett  (Cases  and 
Opinions,  I,  156)  on  this  transaction  was  as  follows: 

The  facts  appear  to  be  that  the  Government  of  Colombia 
having  held  out  for  unreasonable  terms,  the  United  States 


54  PERSONS  IN  INTERNATIONAL  LAW. 

arranged  for  the  setting  up  of  a  new  State,  which  was  more 
amenable  to  American  influences  and  favourable  to  American 
interests. 

On  the  recognition  of  Panama,  see  Moore,  Digest,  III,  sec.  344,  where 
many  of  the  official  documents  are  given;  Freehof,  America  and 
the  Canal  Title  (a  strong  indictment  of  Roosevelt's  action) ;  Root, 
Addresses  on  International  Subjects,  175-206  (a  defense  of  the  recog- 
nition of  Panama).  On  the  recognition  of  other  countries  of  Latin 
America,  see  Latan£,  The  Diplomatic  Relations  of  the  United  States 
and  Spanish  America;  Paxson,  The  Independence  of  the  South  Amer- 
ican Republics;  Callahan,  Cuba  and  International  Relations;  Robert- 
son, "The  Recognition  of  the  Spanish  Colonies  by  the  Motherland," 
Hispanic-American  Historical  Review,  I,  70. 

On  line  general  principles  of  recognition,  see  Bonfils  (Fauchille), 
sec.  195;  Hyde,  I,  56;  and  Moore,  Digest,  I,  ch.  iii. 

It  is  sometimes  attempted  to  distinguish  between  recognition  of 
a  government  and  recognition  of  a  state.  At  bottom  the  two  rest 
upon  essentially  the  same  principles.  If  a  government,  whether  de 
facto  or  de  jure,  is  actually  exercising  the  authority  of  government  in 
a  given  territory  and  is  able  and  willing  to  meet  its  obligations  as 
a  member  of  the  family  of  nations,  it  is  entitled  to  recognition  by  all 
governments  except  those  claiming  a  superior  right,  and  even  the 
latter  must  ultimately  yield  to  the  facts.  Each  country  is  free  to  set 
up  such  government  as  it  likes,  but  any  government  which  seeks 
recognition  from  other  governments  must  show  itself  able  to  meet  its 
international  duties.  The  Soviet  Government  of  Russia  has  not  been 
recognized  by  the  United  States  because  its  leaders  openly  announced 
that  they  did  not  regard  any  agreements  which  they  might  make  with 
non-Bolshevik  governments  as  binding  upon  them  and  because  it  was 
known  that  the  Soviet  Government  was  subsidizing  Bolshevik  revolu- 
tions throughout  the  world.  See  Secretary  Colby's  statement  of  Au- 
gust 18,  1920,  quoted  in  Hyde,  I,  73.  For  an  account  of  President 
Wilson's  refusal  to  recognize  the  Huerta  government  in  Mexico  see 
Hyde,  I,  71,  and  the  authorities  there  cited. 

Even  though  the  political  departments  of  a  government  refuse  to 
accord  recognition  to  the  government,  whether  de  jure  or  de  facto,  of 
another  country,  no  reason  is  apparent  why  the  courts  should  not 
take  note  of  its  existence  and  operation.  Although  there  may  be 
good  cause  for  refusing  to  enter  into  political  relations  witl\  i,t 
that  cannot  alter  the  fact  of  its  existence.  The  principles 
seaed-  by  the  Soviet  Government  of  Russia  make  it  impossible^  for 
other  countries  to  give  it  political  recognition,  but  the  fact  remains  that 
for  several  years  it  has  been  the  government  of  Russia,  and  for  the 
time  being  it  is  the  authorized  agent  of  the  Russian  state.  Its  right 
to  act  for  Russia  should  therefore  be  admitted  even  though  no  political 
relations  with  it  are  entered  into.  It  would  seem  therefore  that 
if  it  should  dispose  of  property  in  the  United  States  belonging  to 
the  Russian  state,  its  right  to  convey  title  should  not  be  questioned 
See  "Judicial  Determination  of  the  Status  of  Foreign  Governments/' 
Harvard  Law  Review,  XXXV,  607. 


NOTE.  55 

Some  of  the  consequences  of  a  refusal  to  recognize  a  de  facto  govern- 
ment are  seen  in  the  relations  of  the  United  States  and  Soviet  Russia. 
After  the  overthrow  of  the  Czar's  government  in  March,  1917,  the  Pro- 
visional Government  of  Russia,  popularly  known  as  the  Kerensky 
Government,  was  recognized  by  the  United  States,  and  Boris  Bakh- 
meteff  was  received  as  its  ambassador.  After  the  overthrow  of  the 
Provisional  Government  by  the  Soviet  Government,  the  United  States 
refused  to  recognize  the  latter,  but  continued  to  recognize  Mr.  Bakh- 
meteff  as  the  representative  of  Russia.  On  May  6,  1921,  the  State 
Department  issued  a  statement  in  which  it  said,  "As  the  United 
States  Government  has  not  recognized  the  Bolshevik  regime  in 
Moscow  as  a  government,  extreme  caution  should  be  exercised  as 
to  representations  made  by  any  one  purporting  to  represent  the 
Bolshevik  government."  Mr.  Baknmeteff  continued  as  Russian  Am- 
bassador in  Washington  until  June,  1922,  when  he  withdrew,  and  the 
Embassy  was  left  in  the  hands  of  a  Charg6  d'Affaires  who  had  also 
been  appointed  by  the  Provisional  Government. 

When  the  courts  are  in  doubt  as  to  the  status  of  a  foreign  country 
or  its  government,  it  is  customary  for  them  to  make  inquiry  of  the 
executive  department  of  their  own  government.  In  the  case  of  The 
Charkieh  (1873)  L.  R.  4  Ad.  &  Ecc.  59,  Sir  Robert  Phillimore  had 
recourse  to  other  sources  of  information  in  order  to  determine  the 
status  of  the  Khedive  of  Egypt,  and  for  this  he  was  criticised  by 
.Lord  Esher  in  Mighell  v.  Sultan  of  Johore  (1894),  L.  R.  [1894]  1  Q.  B. 
149,  158.  The  information  given  in  response  to  inquiry  is  sometimes 
so  ambiguous  as  to  make  it  difficult  to  determine  whether  recognition 
has  been  accorded  or  not.  In  the  case  of  the  government  of  Esthonia, 
the  court  sought  information  as  to  its  status  from  the  Foreign  Office 
of  Great  Britain  with  this  result: 

The  law  officers  attended  .  .  .  and  informed  His  Lordship 
that  it  had  for  the  time  being,  provisionally  and  with  all  neces- 
sary reservations  as  to  the  future,  recognized  the  Esthonian 
National  Council  as  a  de  facto  independent  body;  and  His 
Majesty's  Government  had  accordingly  received  certain  gen- 
tlemen as  the  informal  diplomatic  representatives  of  the 
Esthonian  Provisional  Government.  Further,  it  was  the  view 
of  His  Majesty's  Government,  without  in  any  way  binding 
itself  as  to  the  future,  that  the  Esthonian  Government  was 
such  a  Government  as  could,  if  it  thought  fit,  set  up  a  prize 
court. 

The  court  accepted  this  statement  as  sufficient  evidence  of  recognition, 
The  Gagara  (1919),  L.  R.  [1919]  P.  95,  97. 

A  similar  inquiry  as  to  the  status  of  the  Provisional  Government 
of  Northern  Russia  elicited  this  statement: 

The  Provisional  Government  of  Northern  Russia  is  com- 
posed of  Russian  groups  who  do  not  recognize  the  authority 
of  the  Russian  Central  Soviet  Government  established  at 
Moscow.  The  seat  of  the  Government  is  Archangel,  and  it  ex- 
tends its  authority  over  the  territory  surrounding  that  port 


56  PERSONS  IN  INTERNATIONAL  LAW. 

and  to  the  west  of  the  White  Sea  up  to  the  Finnish  frontier. 
As  the  title  assumed  by  that  Government  indicates,  it  is 
merely  provisional  in  nature,  and  has  not  been  formally  recog- 
nized either  by  His  Majesty's  Government  or  by  the  Allied 
Powers  as  the  Government  of  a  sovereign  independent  state. 
His  Majesty's  Government  and  the  Allied  Powers  are  however 
at  the  present  moment  co-operating  with  the  Provisional  Gov- 
ernment in  the  opposition  which  that  Government  is  making 
to  the  forces  of  the  Russian  Soviet  Government,  who  are  en- 
gaged in  aggressive  military  operations  against  it,  and  are 
represented  at  Archangel  by  a  British  Commissioner.  The 
representative  of  the  Provisional  Government  in  London  is 
Monsieur  Nabokoff,  through  whom  His  Majesty's  Government 
conducts  communications  with  the  Archangel  Provisional 
Government. 

The  court  held  that  this  statement  did  not  indicate  that  the  Pro- 
visional Government  of  Northern  Russia  had  been  recognized  by  the 
British  Government,  The  Annette;  The  Dora  (1919),  L.  R.  [1919] 
P.  105,  111. 

A  group  of  British  and  Belgian  officers  and  soldiers  were  at 
Murmansk,  which  had  been  under  the  Government  of  Northern  Russia, 
when  the  town  was  captured  by  the  Bolsheviks.  The  British  and 
Belgians,  who  would  probably  have  been  killed  if  they  had  remained, 
could  have  escaped  to  Norway  by  land,  but  they  decided  instead  to 
seize  the  steamer  Lomonosoff,  then  lying  in  the  harbor,  which  they 
navigated  to  a  Norwegian  port  where  they  turned  it  over  to  the 
owners  and  claimed  salvage  on  the  ground  that  they  had  saved  the 
ship  from  the  Bolsheviks.  In  the  action  brought  to  enforce  this 
claim,  the  owners  set  up  several  defenses,  among  them  being  that 
the  plaintiffs  had  merely  saved  the  ship  from  passing  from  the  control 
of  one  government  to  the  control  of  another.  On  this  point  the 
court,  in  The  Lomonosoff  (1920),  L.  R.  [1921]  P.  97,  105,  said: 

It  is  obvious  that  this  court,  respecting  the  comity  of 
nations,  would  never  treat  as  a  meritorious  service  the  act 
of  persons  who  in  defiance  of  the  laws  of  an  established  gov- 
ernment recognized  by  and  in  friendship  with  this  country, 
took  a  ship  out  of  the  lawful  control  of  such  a  government. 
But  at  Murmansk  on  February  21  there  was  no  government 
recognized  by  this  country  and  indeed  no  established  govern- 
ment at  all.  There  was  for  the  moment  a  state  of  anarchy, 
during  which  armed  men  were  taking  possession  of  all  the 
ships  they  could  get  at.  It  is  true  that,  so  far  as  I  can 
judge,  they  were  not  strictly  pirates  in  the  sense  that  they 
were  persons  who  plundered  indiscriminately  for  their  own 
private  ends.  But,  on  the  other  hand,  they  were  not  acting 
with  the  authority  of  a  politically  organized  society  which 
at  the  time  was  recognized  by  this  country.  There  is  noth- 
ing, therefore,  in  the  comity  of  nations  which  compels  this 
Court  to  treat  the  rescue  as  a  rescue  from  lawful  authority. 


NOTE.  67 

I  hold  that  the  danger  was  one  to  which  this  Court  can  have 
regard  and  a  rescue  from  which  this  Court  can  reward.  It 
is  not  the  same  as,  but  it  is  analogous  to,  a  rescue  from  pirates 
or  mutineers,  which  this  Court  has  always  recognized  as  the 
subject  of  salvage. 

In  a  few  instances  courts  -have  intimated  that  in  the  absence  of 
recognition  by  the  political  department  of  the  government,  the  ques- 
tion of  the  independence  of  a  state  is  open  to  proof,  Consul  of  Spain 
v.  The  Conception  (1819),  6  Federal  Cases,  359;  Yrisarri  v.  Clement 
(1825),  2  C.  &  P.  223;  (1826),  3  Bing.  432.  Questions  of  international 
status  however  are  usually  treated  as  political  rather  than  judicial 
questions,  and  the  courts  will  follow  the  decisions  of  the  political 
departments  of  the  government.  In  Rose  v.  Himely  (1808),  4  Cranch, 
240,  272,  in  considering  the  status  of  San  Domingo,  then  in  revolt 
against  France,  Chief  Justice  Marshall  said: 

It  has  been  argued  that  the  colony,  having  declared  itself 
a  sovereign  state,  and  having  thus  far  maintained  its  sov- 
ereignty by  arms,  must  be  considered  and  treated  by  other 
nations,  as  sovereign  in  fact,  and  as  being  entitled  to  main- 
tain the  same  intercourse  with  the  world  that  is  maintained 
by  other  belligerent  nations.  In  support  of  this  argument, 
the  doctrines  of  Vattel  have  been  particularly  referred  to. 
But  the  language  of  that  writer  is  obviously  addressed  to 
sovereigns,  not  to  courts.  It  is  for  governments  to  decide, 
whether  they  will  consider  St.  Domingo  as  an  independent 
nation,  and  until  such  decision  shall  be  made,  or  'France 
shall  relinquish  her  claim,  courts  of  justice  must  consider  the 
ancient  state  of  things  as  remaining  unaltered,  and  the  sov- 
ereign power  of  France  over  that  colony  as  still  subsisting. 

See  also  City  of  Berne  v.  Bank  of  England  (1804),  9  Ves.  347;  The 
Pelican  (1809),  Edwards,  App.  D.;  Jones  v.  Garcia  Del  Rio  (1823), 
Tur.  &  Rus.  297;  Taylor  v.  Barclay  (1828),  2  Sim.  213;  Thompson  v. 
Barclay  (1828),  6  L.  J.  (0.  S.)  Ch.  93;  S.  C.  (1831),  9  L.  J.  (O.  S.) 
Ch.  215;  The  Ionian  Ships  (1855),  2  Spinks,  212;  Republic  of  Peru 
v.  Dreyfus  (1888),  L.  R.  38  Ch.  D.  348;  Mighell  v.  Sultan  of  Johore 
[1894],  1  Q.  B.  149;  Foster  v.  Globe  Venture  Syndicate  [1900],  1  Ch. 
84;  Aksionairnoye  Obschestro  A.  M.  Luther  v.  James  Sagor  &  Co. 
(1920),  L.  R.  [1921]  1  K.  B.  456;  Gelston  v.  Hoyt  (1818),  3  Wheaton, 
246;  United  States  v.  Palmer  (1818),  3  Ib.  610;  The  Divina  Pastora 
(1819),  4  Ib.  52;  The  Santissima  Trinidad  (1822),  7  Ib.  283;  Kennett 
v.  Chambers  (1852),  14  Howard,  38;  United  States  v.  Baker  (1861), 
24  Federal  Cases,  962;  The  Three  Friends  (1897),  166  U.  S.  1;  Under- 
bill v.  Hernandez  (1897),  168  U.  S.  250;  Get jen  v.  Central  Leather 
Co.  (1918),  246  U.  S.  297;  Molina  v.  Comision  Reguladora  del  Mer- 
cado  de  Henequen  (1918),  92  N.  J.  Law,  38. 

It  is  generally  believed  that  to  allow  a  government  to  sue  in  the 
courts  of  a  country  which  has  not  recognized  it  would  set  the  courts 
of  that  country  in  opposition  to  its  political  departments.  It  is  there- 
fore well-settled  that  such  a  government  shall  not  be  allowed  access 


58  PERSONS  IN  INTERNATIONAL  LAW. 

V3J  fl-^ST. 

to  the  courts  as  a  plaintiff,  Russian  Socialist  Federated  Soviet  Gov- 
ernment v.  Cibrario  (1921),  191  N.  Y.  Supp.  543;  The  Rogdai  (1920), 
278  Fed.  294;  The  Penza  (1921),  277  Fed.  91;  but  the  same  reasons 
do  not  apply  if  an  unrecognized  government  appears  as  a  defend- 
ant. If  the  courts  adjudicate  claims  asserted  against  It  they  do 
not  thereby  embarrass  the  action  of  the  political  departments  nor 
impair  their  freedom  in  passing  upon  the  question  of  recognition. 
Such  a  suit  has  therefore  been  allowed,  Wulfsohn  v.  Russian  Soviet 
Government  (1922),  66  N.  Y.  L.  J.  1711,  discussed  in  Harvard  Law 
Review,  XXXV,  768.  ^3v  X^  . 

The  League  of  Nations. — The  League  of  Nations  is  a  new  organiza- 
tion whose  status  in  international  law  is  as  yet  undetermined. 
Throughout  the  Great  War  many  men  in  many  countries  were  giving 
thought  to  plans  for  the  settlement  of  international  controversies 
and  the  prevention  of  war.  Projects  for  international  organization, 
in  the  elaboration  of  which  Leon  Bourgeois,  former  Prime  Minister 
of  France,  Lord  Robert  Cecil,  former  Minister  of  Blockade  of  Great 
Britain,  General  Louis  Botha,  former  Minister  of  Defence  of  the 
Union  of  South  Africa,  and  Woodrow  Wilson,  then  President  of  the 
United  States,  had  taken  the  leading  part,  were  laid  before  the  Peace 
Conference,  and  owing  chiefly  to  the  insistence  of  President  Wilson 
that  the  Conference  should  provide  some  machinery  for  international 
administration  and  adjustment  of  differences  in  time  of  peace,  the 
Covenant  of  the  League  of  Nations  was  adopted  and  incorporated 
in  the  Treaty  of  Peace  with  Germany,  and  has  been  accepted  by 
more  than  fifty  countries.  Germany  has  applied  for  admission  to 
the  League'and  the  only  other  non-member  states  are  Russia,  Turkey, 
Egypt,  Ecuador,  Mexico  and  the  United  States.  The  objects  of  the 
League  are  stated  in  the  preamble  to  the  Covenant  (Part  I  of  the 
Treaty  of  Versailles)  in  the  following  words: 
THE  HIGH  CONTRACTING  PARTIES, 

In  order  to  promote  international  co-operation  and  to  achieve 
international  peace  and  security 

by  the  acceptance  of  obligations  not  to  resort  to  war, 
by  the   prescription    of   open,   just   and   honourable   relations 

between  nations, 

by  the  firm  establishment  of  the  understandings  of  interna- 
tional law  as  the  actual  rule  of  conduct  among  Govern- 
ments, and 

by  the  maintenance  of  justice  and  a  scrupulous  respect  for 
all  treaty  obligations  in  the  dealings  of  organized  peoples 
with  one  another, 

Agree  to  this  Covenant  of  the  League  of  Nations. 
The  seat  of  the  League  is  at  Geneva,  Switzerland.  Its  government 
is  vested  in  a  Council  and  an  Assembly.  These  two  bodies,  in  ac- 
cordance with  the  terms  of  the  Covenant,  have  established  the  Per- 
manent Court  of  International  Justice  at  The  Hague.  As  to  the 
Permanent  Court  see  Hudson,  "The  Permanent  Court  of  International 
Justice,"  Harvard  Law  Review,  XXXV,  245.  The  statute  establishing 
the  Court  forms  an  appendix  to  this  articl<^'pjle  attitude  £  Versailles 

of  the  German  Government  seems  to  be  that  it  will 
apply  if  it  can  be  assured  in  advance  that  its  appii- 
cation  will  be  granted. 


THE  KING  v.  THE  EARL  OF  CREWE.  59 

also  created  an  International  Labor  Office  as  part  of  the  organisation 
of  the  League  of  Nations. 

On  the  League  of  Nations  see  Temperley,  History  of  the  Peace  Con- 
ference of  Paris;  Sir  Geoffrey  Butler,  Handbook  to  the  League  of 
Nations,  with  an  introduction  by  Lord  Robert  Cecil;  Duggan,  The 
League  of  Nations:  the  Principle  and  the  Practice;  Erzberger,  The 
League  of  Nations;  Lord  Grey  of  Falloden,  The  League  of  Nations; 
Haskins  and  Lord,  Some  Problems  of  the  Peace  Conference;  House, 
What  Happened  at  Paris;  Lawrence,  The  Society  of  Nations:  Its 
Past,  Present  and  Possible  Future;  Oppenheim,  The  League  of  Na- 
tions and  its  Problems;  Sir  George  Paish,  The  Nations  and  the  League; 
Lord  Eustace  Percy,  The  Responsibilities  of  the  League;  Pillet,  De 
I'Idee  d'une  Societe  des  Nations;  Sir  Frederick  Pollock,  The  League 
of  Nations. 


SECTION  2.    PROTECTORATES. 
THE  KING  v.  THE  EARL  OF  CREWE. 

THE  COUBT  OF  APPEAL  OF  ENGLAND.     1910. 
Law  Reports  [1910]  2  K.  B.  576. 

[By  treaties  with  the  native  tribes,  Bechuanaland  was  placed 
under  the  jurisdiction  of  the  British  Crown,  and  in  1885,  by  an 
Order  in  Council,  was  erected  into  a  protectorate.  By  another 
Order  in  Council  in  1891,  the  British  High  Commissioner  for 
South  Africa  was  empowered  to  provide  for  the  peace  and  good 
order  of  all  persons  under  the  jurisdiction  of  the  Crown  in 
South  Africa.  A  controversy  having  arisen  in  one  of  the  tribes 
as  to  who  was  its  rightful  chief,  the  High  Commissioner,  under 
authority  of  the  Order  in  Council  of  1891,  directed  that  Sek- 
gome,  one  of  the  claimants  who  was  then  outside  the  tribal 
limits,  should  be  detained  in  custody  lest  his  return  to  the  tribe 
should  provoke  bloodshed.  Sekgome  then  endeavored  to  obtain 
his  release  by  a  writ  of  habeas  corpus  directed  to  the  Earl  of 
Crewe,  Secretary  of  State  for  the  Colonies.  The  writ  was  de- 
nied on  the  ground  that  application  had  not  been  made  to  the 
right  court  and  that  the  Earl  of  Crewe  did  not  have  the  custody 
of  the  prisoner.  On  appeal  this  decision  was  affirmed.  Only 
so  much  of  one  of  the  opinions  is  given  as  relates  to  the  nature 
of  protectorates.] 

KENNEDY,  L.  J,    ,    ,    .    Sekgome  was  born  and  has  remained 


60  PERSONS  IN  INTERNATIONAL  LAW. 

a  member  of  a  native  African  tribe,  dwelling  in  a  region  which 
has  for  some  years  .  .  .  become  officially  entitled  "The 
Batawana  Native  Reserve,"  near  Lake  Ngami,  within  the  Bech- 
uanaland  Protectorate.  Now  the  features  of  Protectorates  differ 
greatly,  and  of  this  a  comparison  of  the  British  Protectorates  of 
native  principalities  in  India,  the  British  Protectorate  of  the 
Ionian  Islands  between  1815  and  1864,  the  Protectorate  of  the 
Federated  Malay  States,  and  the  Bechuanaland  Protectorate 
.  .  .  affords  ample  illustration.  .  .  .  The  one  common 
element  in  Protectorates  is  the  prohibition  of  all  foreign  rela- 
tions except  those  permitted  by  the  protecting  State.  Within  a 
Protectorate,  the  degree  and  the  extent  of  the  exercise  by  the 
protecting  State  of  those  sovereign  powers  which  Sir  Henry 
Maine  has  described  (International  Law,  p.  58)  as  a  bundle  or 
collection  of  powers  which  may  be  separated  one  from  another, 
may  and  in  practice  do  vary  considerably.  In  this  Bechuana- 
land Protectorate  every  branch  of  such  government  as  exists — 
administrative,  executive,  and  judicial — has  been  created  and 
is  maintained  by  Great  Britain.  What  the  idea  of  a  Protectorate 
excludes,  and  the  idea  of  annexation  on  the  other  hand  would 
include,  is  that  absolute  ownership  which  was  signified  by  the 
word  "dominion"  in  Roman  law,  and  which,  though  perhaps 
not  quite  satisfactorily,  is  described  as  territorial  sovereignty. 
The  protected  country  remains  in  regard  to  the  protecting  State 
a  foreign  country ;  and,  this  being  so,  the  inhabitants  of  a  Pro- 
tectorate, whether  native  born  or  immigrant  settlers,  do  not  by 
virtue  of  the  relationship  between  the  protecting  and  the  pro- 
tected State  become  citizens  of  the  protecting  State.  As  Dr. 
Lushington  said  in  regard  to  the  inhabitants  of  the  Ionian 
States,  then  under  a  British  Protectorate,  in  his  judgment  in 
The  Ionian  Ships  (1855),  2  Ecc.  &  Adm.  212,  226,  "allegiance 
in  the  proper  sense  of  the  term  undoubtedly  they  do  not  owe; 
because  allegiance  exists  only  between  the  Sovereign  and  his 
subjects,  properly  so  called,  which  they  are  not."  A  limited 
obedience  the  dwellers  within  a  Protectorate  do  owe,  as  a  sort 
of  equivalent  for  protection ;  and  in  the  present  case  the  Orders 
in  Council  relating  to  the  Bechuanaland  Protectorate  and  the  ' 
proclamations  of  the  High  Commissioner  made  thereunder  im- 
ply the  duty  of  obedience  on  the  part  of  Sekgome  and  other 
persons  within  the  area  of  the  Protectorate  to  a  practically  un- 
limited extent.  .  .  . 

Appeal  dismissed. 


STATHAM  v.  STATHAM.  61 

STATHAM    v.    STATHAM    AND    HIS    HIGHNESS    THE 
GAEKWAR  OF  BARODA. 

PROBATE,   DIVORCE  AND   ADMIRALTY   DIVISION   OF  THE   HIGH   COURT   OF 
JUSTICE  OF  ENGLAND.     1911. 
Law  Reports  [1912]  P.  92. 

These  were  two  applications  arising  out  of  a  husband's  di- 
vorce petition.  .  .  . 

The  second  was  a  summons  ...  by  the  co-respondent  ask- 
ing that  he  should  be  dismissed  from  the  suit  on  the  ground 
that  he  was  an  independent  ruling  prince.  .  .  . 

BARGRAVE  DEANE  J.  In  this  case  Mr.  George  Wellington 
Statham  has  filed  a  petition  praying  the  Court  to  dissolve  his 
marriage  on  the  ground  of  the  adultery  of  his  wife,  Beatrix 
Alice  Statham,  with  his  Highness  Maharaja  Gaekwar  Sir  Saraji 
Rao  III  of  Baroda,  who  has  been  added  as  a  co-respondent  in 
the  suit  under  s.  28  of  the  Divorce  Act,  1857. 

The  first  question  which  I  have  to  determine  is  raised  by 
summons  on  behalf  of  the  co-respondent,  in  which  the  Court 
is  asked  to  dismiss  him  from  the  suit  on  the  ground  that  he  is  a 
reigning  sovereign  and  by  the  rules  of  international  law  is  not 
amenable  to  the  jurisdiction  of  the  Court.  .  .  . 

There  is  no  doubt  that  an  independent  reigning  sovereign 
cannot  by  the  rules  of  international  law  be  made  against  his 
will  a  party  to  proceedings  in  our  Courts.  He  may  choose  to 
sue,  and  if  so  a  counter-claim  may  be  raised  against  him  as 
plaintiff,  but  he  cannot  be  made  a  defendant. 

What  then  is  the  status  of  the  Gaekwar  of  Baroda? 

So  far  as  I  have  been  able  to  ascertain  by  my  researches  the 
princes  of  Baroda  date  their  importance  from  the  Mahralta 
Confederacy,  which  in  the  eighteenth  century  was  a  powerful 
body  of  confederated  ruling  chiefs  in  India.  During  the  last 
thirty -two  years  of  the  eighteenth  century  the  house  of  Baroda 
fell  a  prey  to  family  feuds,  and  in  1800  the  succession  fell  to  a 
prince  feeble  in  mind.  Internal  troubles  arising,  British  troops 
were  sent  in  defense  of  the  hereditary  ruler  against  all  claim- 
ants, and  in  1802  a  treaty  was  signed  by  which  the  independ- 
ence of  the  reigning  prince  of  all  except  the  British  Crown  was 
assured,  but  which,  on  the  other  hand,  secured  his  dependence 
on  the  British  Crown.  Several  weak  but  troublesome  princes 
succeeded  in  succession  to  the  throne  of  Baroda,  and  in  1874 


62  PERSONS  IN  INTERNATIONAL  LAW. 

the  then  reigning  Gaekwar  was  by  order  of  the  British  Govern- 
ment brought  to  trial  on  a  charge  of  attempting  to  poison  the 
British  resident  at  his  court.  The  trial  was  conducted  before 
a  mixed  commission  of  eminent  British  officers  and  natives  of 
the  highest  rank.  A  unanimous  verdict  was  not  obtained,  and 
in  the  result,  the  then  Viceroy  of  India,  Lord  Northbrook,  de- 
posed the  Gaekwar  and  appointed  another  member  of  the  royal 
house  of  Baroda  to  reign  in  his  place. 

In  October,  1911,  an  action  was  brought  in  the  King's  Bench 
Division  of  the  High  Court  in  England  by  one  Ernest  Emman- 
uel against  the  present  reigning  Gaekwar,  and  Lush  J.,  upon 
hearing  counsel  for  both  sides  and  having  obtained  a  certificate 
from  the  India  Office  as  to  the  status  of  the  Gaekwar  of  Baroda, 
ordered  that  the  writ  in  the  action  be  set  aside  and  all  proceed- 
ings stayed  on  the  ground  that  the  defendant  was  an  independ- 
ent sovereign  and  not  a  subject  of  His  Majesty  the  King.  The 
certificate  from  the  India  Office  is  as  follows: — 
"India  Office  Certificate. 

"The  Gaekwar  of  Baroda  has  been  recognized  by  the  Gov- 
ernment of  India  as  a  ruling  chief  governing  his  own  territories 
under  the  suzerainty  of  His  Majesty.  He  is  treated  as  falling 
within  the  class  referred  to  in  the  Interpretation  Act,  1889, 
section  18,  sub-sec.  5,  as  that  of  native  princes  or  chiefs  under 
the  suzerainty  of  His  Majesty  exercised  through  the  Governor- 
General  of  India.  The  British  Government  does  not  regard  or 
treat  his  Highness'  territory  as  being  part  of  British  India  or 
His  Majesty's  domain,  and  it  does  not  regard  or  treat  him  or 
his  subjects  as  subjects  of  His  Majesty. 

"But  though  his  Highness  is  thus  not  independent,  he  exer- 
cises as  ruler  of  his  State  various  attributes  of  sovereignty,  in- 
cluding internal  sovereignty,  which-*$  not  derived  from  British 
law,  but  is  inherent  in  the  ruling  chief  of  Baroda,  subject,  how- 
ever, to  the  Suzerainty  of  His  Majesty  the  King  of  England 
and  to  the  exercise  by  the  Government  of  India  of  such  of  the 
rights  and  powers  of  territorial  sovereignty  as  have  by  treaty, 
usage,  or  otherwise  passed  to  and  are  exercised  by  the  suzerain, 
such  as,  for  instance,  the  exercise  of  jurisdiction  over  Europeans 
and  Americans  in  Baroda,  of  interference  to  settle  disputes  as 
to  succession  to  the  State  or  to  put  a  stop  to  gross  misrule  in 
the  State,  or  to  regulate  armaments  and  the  strength  of  the 
military  forces,  &c." 
What  is  the  meaning  of  the  word  "suzerainty"  and  what  are 


STATHAM  v.  STATHAM.  63 

its  essentials  ?  Sir  Courtney  Ilbert  in  his  work  on  the  Govern- 
ment of  India  gives  a  digest  of  statutory  enactments  relating 
to  India,  and  in  a  supplemental  part  to  that  digest  are  con- 
tained definitions  of  expressions  in  the  digest.  He  adopts  the 
interpretations  given  in  the  Interpretation  Act,  1889,  and  the 
Indian  General  Clauses  Act,  1897,  and  in  a*  note  says  the  ex- 
pression "suzerainty"  is  substituted  by  the  Interpretation  Act 
for  the  older  expression  "alliance"  as  indicating  more  ac- 
curately the  relation  between  the  rulers  of  these  States  and  the 
British  Crown  as  the  paramount  authority  throughout  India. 

Thus  "suzerainty"  is  a  term  applied  to  certain  international 
relations  between  two  sovereign  States  whereby  one,  whilst  re- 
taining a  more  or  less  limited  sovereignty,  acknowledges  the 
supremacy  of  the  other.  Such  a  relation  may  be  either  in  the 
nature  of  a  fief,  or  conventional,  i.  e.,  by  some  treaty  of  peace 
or  alliance  in  contrast  with  the  fief,  which  is  a  sovereignty 
granted  by  a  lord  paramount  over  some  defined  territory  ac- 
companied with  an  express  grant  of  jurisdiction. 

Grotius  (Dc  Jure  Belli  ac  Pads)  says  unequal  leagues  are 
made  not  only  between  the  conqueror  and  the  conquered,  but 
also  between  peoples  of  unequal  power,  even  such  as  never 
were  at  war  with  one  another.  Grotius,  Pufendorf,  and  Vattel 
agree  that  in  unequal  alliance  the  inferior  power  remains  a 
sovereign  State.  Its  subjects  or  citizens  own  allegiance  only 
to  their  own  sovereign.  Over  their  disputes  and  internal  dis- 
sensions the  suzerain  power  as  such  has  no  jurisdiction.  In 
short,  the  weaker  power  may  exercise  the  rights  of  sover- 
eignty so  long  as  by  so  doing  no  detriment  is  caused  to  the 
interests  or  influence  of  the  suzerain  power.  It  follows  that  the 
inferior  power  must  in  all  alliances  with  other  States  be  con- 
trolled by  its  suzerain.  Vattel  says  a  weak  State  which  in  order 
to  provide  for  its  safety  places  itself  under  the  protection  of  a 
more  powerful  one  and  engages  to  perform  in  return  several 
offices  equivalent  to  that  protection,  without,  however,  divesting 
itself  of  the  right  of  government  and  sovereignty,  does  not 
cease  to  rank  among  the  sovereigns  who  acknowledge  no  other 
law  than  the  law  of  nations. 

In  my  opinion  this  aptly  states  the  true  status  of  the  present 
Gaekwar  of  Baroda  and  is  consistent  with  the  status  of  that 
sovereign  prince  as  defined  by  the  certificate  from  the  India 
Office,  and  it  follows  that  his  Highness  by  international  law 
is  not  capable  of  being  a  co-respondent  in  a  suit  for  dissolution 


64  PERSONS  IN  INTERNATIONAL  LAW. 

of  marriage   in   the    High   Court   in   England,   and  his  name 
must  be  struck  out  as  a  co-respondent.    .    .    . 

NOTE.— In   Worcester  v.   Georgia    (1836),   6   Peters,   515,   561,   Chief 
Justice  Marshall   said: 

The  settled  doctrine  of  the  law  of  nations  is,  that  a  weaker 
power  does  not  surrender  its  independence — its  right  of  self- 
government,  by  associating  with  a  stronger,  and  taking  its 
protection.  A  weak  state,  in  order  to  provide  for  its  safety, 
may  place  itself  under  the  protection  of  one  more  powerful, 
without  stripping  itself  of  the  right  of  government,  and  ceas- 
ing to  be  a  state.  Examples  of  this  kind  are  not  wanting  in 
Europe.  "Tributary  and  feudatory  states,"  says  Vattel,  "do 
not  thereby  cease  to  be  sovereign  and  independent  states,  so 
long  as  self-government  and  sovereign  and  independent  au- 
thority are  left  in  the  administration  of  the  state."  At  the 
present  day,  more  than  one  state  may  be  considered  as  hold- 
ing its  right  of  self-government  under  the  guarantee  and 
protection  of  one  or  more  allies. 

Protectorates  differ  widely  in  the  extent  of  the  authority  of  the 
protecting  state.  In  some  it  is  a  power  held  in  reserve  to  be  used 
only  as  to  certain  subjects  or  on  certain  definite  occasions.  Such 
is  the  relations  between  the  United  States  and  Cuba.  For  the 
treaty  of  1903,  see  Malloy,  Treaties  and  Conventions,  I.  362.  In 
others,  as  in  the  case  of  the  protectorate  established  by  Prance  over 
Tunis  in  1883,  the  result  is  little  short  of  annexation.  The  treaty 
of  1903  between  the  United  States  and  Panama  provides:  "The 
United  States  guarantees  and  will  maintain  the  independence  of  the 
Republic  of  Panama."  Outside  the  Canal  Zone  however  the  United 
States  exercises  no  functions  of  government.  For  the  treaty  of  Feb- 
ruary 8,  1907  between  the  United  States  and  the  Dominican  Republic, 
whereby  the  former  acquired  control  of  Dominican  finances  and  such 
police  supervision  as  would  enable  it  to  discharge  its  duties,  see 
Malloy,  I.  148.  For  the  treaty  giving  the  United  States  control  over 
the  finances  of  Haiti  and  certain  powers  in  connection  with  the 
police  and  sanitary  administration  of  the  country,  see  39  U.  8.  Stat- 
utes-at-Large,  1654.  By  the  treaty  of  Fez  of  March  30,  1912,  the 
Sultan  of  Morocco  accepted  a  French  protectorate.  The  Spanish 
Zone  in  Morocco  is  governed  by  Spain  in  accordance  with  the  treaty 
of  November  27,  1912  between  France  and  Spain.  In  India  there  are 
more  than  six  hundred  native  states  which  are  under  British  pro- 
tection, but  are  not  an  integral  part  of  British  dominions  and  whose 
rulers  are  known  as  the  protected  princes.  While  they  are  almost 
independent  in  the  regulation  of  their  internal  affairs,  they  have  no 
international  status.  See  Sirdar  Gurdyal  Singh  v.  The  Rajah  of 
Faridkote  [1894]  A.  C.  670;  Lee-Warner,  The  Protected  Princes  of 
India;  Tupper,  Our  Indian  Protectorate;  Westlake,  Collected  Papers, 
194.  The  anomalous  situation  of  Egypt  prior  to  the  outbreak  of  the 


NOTE.  65 

Great  War  was  terminated  on  December  17,  1914,  when  the  following 
announcement  was  made: 

His  Britannic  Majesty's  Principal  Secretary  of  State  for  For- 
eign Affairs  gives  notice  that,  in  view  of  the  state  of  war 
arising  out  of  the  action  of  Turkey,  Egypt  is  placed  under 
the  protection  of  His  Majesty,  and  will  henceforth  constitute 
a  British  Protectorate.  The  suzerainty  of  Turkey  over  Egypt 
is  thus  terminated,  and  His  Majesty's  Government  will  adopt 
all  measures  necessary  for  the  defence  of  Egypt  and  the  pro- 
tection of  its  inhabitants  and  interests.  The  King  has  been 
pleased  to  approve  the  appointment  of  Lieutenant-Colonel  Sir 
Arthur  H.  McMahon  to  be  His  Majesty's  High  Commissioner 
for  Egypt. 

On  December  18,  1914,  the  British  Government  made  this  further 
announcement: 

In  view  of  the  action  of  His  Highness  Abbas  Hilmi  Pacha, 
lately  Khedive  of  Egypt,  who  has  adhered  to  the  King's  en- 
emies, His  Majesty's  Government  have  seen  fit  to  depose  him 
from  the  Khediviate,  and  that  high  dignity  has  been  offered, 
with  the  title  of  Sultan  of  Egypt,  to  His  Highness  Prince 
Hussein  Kamel  Pacha,  eldest  living  Prince  of  the  family  of 
Mehemet  AH,  and  has  been  accepted  by  him. 

The  protectorate  thus  established  was  terminated  in  1922  by  tho 
granting  of  independence  to  Egypt,  but  the  rights  retained  therein 
by  Great  Britain  still  place  Egypt  in  the  category  of  protected  states. 
In  order  to  give  the  new  state  of  Poland  an  unimpeded  outlet  to  the 
sea,  provision  was  made  in  the  Treaty  of  Versailles  that  the  port  of 
Danzig  and  certain  adjacent  territory,  amounting  in  all  to  about 
seven  hundred  square  miles,  should  form  the  Free  State  of  Danzig, 
which  was  placed  under  the  protection  of  the  League  of  Nations  by 
whom  a  High  Commissioner  is  appointed.  For  further  discussion  of 
the  international  position  of  protectorates  see  The  Ionian  Ships  (1855), 
2  Spinks,  Ecc.  &  Adm.  212;  The  Charldeh  (1873),  L.  R.  4  Ad.  & 
Ecc.  59;  Abd-ul-Messih  v.  Farra  (1887),  13  A.  C.  431;  United  States  v. 
Assia  (1902),  118  Fed.  915;  Sir  Malcolm  Mcllwraith,  "The  Declaration 
of  a  Protectorate  in  Egypt  and  its  Legal  Effects",  Journal  of  the  So- 
ciety of  Comparative  Legislation,  XVII,  238;  Burge,  Commentaries  on 
Colonial  and  Foreign  Laws,  new  ed.  4  vols.;  Engelhardt,  Les  Protecto- 
rate Anciens  et  Modernes;  Bonfils  (Fauchille),  sec.  176;  Moore,  Digest, 
I,  27. 

The  Covenant  of  the  League  of  Nations  provides  that  states  and 
territories  which  in  consequence  of  the  Great  War  had  ceased  to 
belong  to  the  states  formerly  governing  them  and  which  were  "not 
able  to  stand  by  themselves  under  the  strenuous  conditions  of  tho 
modern  world"  shall  be  placed  under  the  control  of  certain  "ad- 
vanced" states  selected  by  the  League.  Such  states  are  known  as 
mandatories.  They  exercise  such  authority  as  the  League  may  com- 
mit to  them  and  are  responsible  to  the  League.  In  the  choice  ol 


66  PERSONS  IN  INTERNATIONAL  LAW. 

mandatories  for  the  states  erected  in  Turkish  territories,  it  was 
declared  that  the  wishes  of  the  populations  concerned  should  be  the 
principal  consideration.  By  this  system  the  League  of  Nations  as- 
sumes a  collective  responsibility  for  the  well-being  of  those  regions 
which  are  placed  under  the  control  of  its  agents.  Mandates  have 
thus  far  been  established  as  follows:  Palestine  and  Mesopotamia  to 
Great  Britain;  Syria  to  Prance;  German  East  Africa  to  Great  Brit- 
ain and  Belgium;  German  Southwest  Africa  to  the  Union  of  South 
Africa;  Togoland  to  Great  Britain  and  France;  The  German  islands 
in  the  Pacific  north  of  the  equator  to  Japan;  German  Samoa  to  New 
Zealand;  the  other  German  islands  in  the  Pacific  south  of  the  equator 
to  Australia.  The  request  of  the  Allies  that  the  United  States  should 
accept  a  mandate  for  Armenia  was  rejected  by  the  Senate. 


SECTION  3.    BELLIGERENT  OB  INSURGENT   COMMUNITIES. 
THE  THREE  FRIENDS. 

SUPREME  COURT  OF  THE  UNITED  STATES.    1897. 
166  U.  S.  1. 

Certiorari  to  the  Circuit  Court  of  Appeals  for  the  Fifth  Cir- 
cuit. 

[The  steamer  Three  Friends  which  was  fitted  out  on  the 
seventh  of  May,  1896,  in  the  St.  John's  River,  Florida,  with 
supplies,  arms,  and  munitions  intended  for  the  service  of  the 
Cuban  insurgents  then  in  rebellion  against  the  King  of  Spain, 
was  seized  by  the  collector  of  customs  and  libelled  on  behalf 
of  the  United  States  for  violation  of  section  5283  of  the  Revised 
Statutes,  the  material  portion  of  which  provided  for  the  for- 
feiture of  any  vessel  and  its  equipment  which  should  be  fitted 
out  in  the  United  States  for  the  purpose  of  waging  hostilities 
in  "the  service  of  any  foreign  prince  or  state,  or  of  any  colony, 
district,  or  people."  The  owners  of  the  vessel  filed  exceptions 
to  the  libel  on  the  ground  that  it  did  not  show  any  intent  that 
the  vessel  should  be  employed  "in  the  service  of  a  foreign 
prince,  or  state,  or  of  a  colony,  district  or  people  \vith  whom 
the  United  States  are  at  peace,"  or  of  "any  body  politic  recog- 
nized by  or  known  to  the  United  States  as  a  body  politic." 
These  exceptions  having  been  sustained,  an  appeal  was  taken 
by  the  United  States  to  the  Circuit  Court  of  Appeals  from 


THE  THREE  FRIENDS.  67 

which  the   case  was  brought   on  a  writ   of   certiorari  to  this 
court.] 

MR.  CHIEF  JUSTICE  FULLER  .  .  .  delivered  the  opinion 
of  the  court.  .  .  . 

By  referring  to  section  three  of  the  act  of  June  5,  1794,  sec- 
tion one  of  the  act  of  1817,  and  section  three  of  the  act  of  1818. 
.  .  .  it  will  be  seen  that  the  words  "or  of  any  colony,  dis- 
trict, or  people"  were  inserted  in  the  original  law  by  the  act 
of  1817,  carried  forward  by  the  act  of  1818,  and  so  into  section 
5283. 

'The  immediate  occasion  of  the  passage  of  the  act  of  March 
3,  1817,  appears  to  have  been  a  communication,  under  date  of 
December  20,  1816,  from  the  Portuguese  minister  to  Mr.  Monroe, 
then  Secretary  of  State,  informing  him  of  the  fitting  out  of 
privateers  at  Baltimore  to  act  against  Portugal,  in  case  it  should 
turn  out  that  the  Government  was  at  war  with  the  "self-styled 
Government  of  Buenos  Ayres, "  and  soliciting  "the  proposition 
to  Congress  of  such  provisions  of  law  as  will  prevent  such  at- 
tempts for  the  future."  On  December  26,  1816,  President  Madi- 
son sent  a  special  message  to  Congress,  in  which  he  referred  to 
the  inefficacy  of  existing  laws  "to  prevent  violations  of  the 
obligations  of  the  United  States  as  a  nation  at  peace  towards 
belligerent  parties  and  other  unlawful  acts  on  the  high  seas  by 
armed  vessels  equipped  within  the  waters  of  the  United  States," 
and,  "with  a  view  to  maintain  more  effectually  the  respect  due 
to  the  laws,  to  the  character,  and  to  the  neutral  and  pacific  rela- 
tions of  the  United  States,"  recommended  further  legislative 
provisions.  This  message  was  transmitted  to  the  minister  De- 
cember 27,  and  he  was  promptly  officially  informed  of  the  pass- 
age of  the  act  in  the  succeeding  month  of  March.  Geneva 
Arbitration,  Case  of  the  United  States,  138.  Tn  Mr.  Dana's 
elaborate  note  to  §  439  of  his  edition  of  Wheaton,  it  is  said  that 
the  words  "colony,  district,  or  people"  were  inserted  on  the 
suggestion  of  the  Spanish  minister  that  the  South  American 
provinces  in  revolt  and  not  recognized  as  independent  might 
not  be  included  in  the  word  "state."  Under  the  circumstances 
this  act  was  entitled  as  "to  preserve  the  neutral  relations  of  the 
United  States,"  while  the  title  of  the  act  of  1794  described  it 
as  "in  addition"  to  the  Crimes  Act  of  April  30,  1790,  1  Stat. 
112,  c.  9,  and  the  act  of  1818  was  entitled  in  the  same  way. 
But  there  is  nothing  in  all  this  to  indicate  that  the  words 


68  PERSONS  IN  INTERNATIONAL  LAW. 

"coldny,  district,  or  people"  had  reference  solely  to  commun- 
ities whose  belligerency  had  been  recognized,  and  the  history 
of  the  times,  an  interesting  review  of  which  has  been  fur- 
nished us  by  the  industry  of  counsel,  does  not  sustain  the 
view  that  insurgent  districts  or  bodies,  unrecognized  as  bellig- 
erents, were  not  intended  to  be  embraced.  On  the  contrary, 
the  reasonable  conclusion  is  that  the  insertion  of  the  words 
"district  or  people"  should  be  attributed  to  the  intention  to 
include  such  bodies,  as,  for  instance,  the  so-called  Oriental 
Republic  of  Artigas,  and  the  Governments  of  Petion  and 
Christophe,  whose  attitude  had  been  passed  on  by  the  courts  of 
New  York  more  than  a  year  before  in  Gelston  v.  Hoyt,  13 
Johns.  141,  561,  which  was  then  pending  in  this  court  on  writ 
of  error.  There  was  no  reason  why  they  should  not  have  been 
included,  and  it  is  to  the  extended  enumeration  as  covering 
revolutionary  bodies  laying  claim  to  rights  of  sovereignty, 
whether  recognized  or  unrecognized,  that  Chief  Justice  Marshall 
manifestly  referred  in  saying,  in  The  Gran  Para,  7  Wheat.  471, 
489,  that  the  act  of  1817  "adapts  the  previous  laws  to  the  actual 
situation  of  the  world."  At  all  events,  Congress  imposed  no 
limitation  on  the  words  "colony,  district,  or  people,"  by  requir- 
ing political  recognition. 

Of  course  a  political  community  whose  independence  has  been 
recognized  is  a  "state"  under  the  act;  and,  if  a  body  embarked 
in  a  revolutionary  political  movement,  whose  independence  has 
not  been,  but  whose  belligerency  has  been,  recognized,  is  also 
embraced  by  that  term,  then  the  words  "colony,  district,  or 
people, ' '  instead  of  being  limited  to  a  political  community  which 
has  been  recognized  as  a  belligerent,  must  necessarily  be  held 
applicable  to  a  body  of  insurgents  associated  together  in  a  com- 
mon political  enterprise  and  carrying  on  hostilities  against  the 
parent  country,  in  the  effort  to  achieve  independence,  although 
recognition  of  belligerency  has  not  been  accorded. 

And  as  agreeably  to  the  principles  of  international  law  and 
the  reason  of  the  thing,  the  recognition  of  belligerency,  while 
not  conferring  all  the  rights  of  an  independent  state,  concedes 
to  the  Government  recognized  the  rights,  and  imposes  upon  it 
the  obligations,  of  an  independent  state  in  matters  relating  to 
the  war  being  waged,  no  adequate  ground  is  perceived  for  hold- 
ing that  acts  «in  aid  of  such  a  Government  are  not  in  aid  of  a 
state  in  the  sense  of  the  statute.  .  .  . 

Even  if  the  word  "state"  as  previously  employed  admitted  of 


THE  THREE  FRIENDS.  69 

a  less  liberal  signification,  why  should  the  meaning  of  the  words 
"colony,  district,  or  people"  be  confined  only  to  parties  recog- 
nized as  belligerent?  Neither  of  these  words  is  used  as  equiv- 
alent to  the  word  "state,"  for  they  were  added  to  enlarge  the 
scope  of  a  statute  which  already  contained'  that  word.  The 
statute  does  not  say  foreign  colony,  district,  or  people,  nor  was 
it  necessary,  for  the  reference  is  to  that  which  is  part  of  the 
dominion  of  a  foreign  prince  or  state,  though  acting  in  hostility 
to  such  prince  or  state.  Nor  are  the  words  apt  if  confined  to  a 
belligerent.  As  argued  by  counsel  for  the  Government,  an  in- 
surgent colony  under  the  act  is  the  same  before  as  after  the 
recognition  of  belligerency,  as  shown  by  the  instance  of  the 
colonies  of  Buenos  Ayres  and  Paraguay,  the  belligerency  of  one 
having  been  recognized  but  not  of  the  other,  while  the  statute 
was  plainly  applicable  to  both.  Nor  is  district  an  appropriate 
designation  of  a  recognized  power  de  facto,  since  such  a  power 
would  represent  not  the  territory  actually  held  but  the  territory 
covered  by  the  claim  of  sovereignty.  And  the  word  "people," 
when  not  used  as  the  equivalent  of  state  or  nation,  must  apply 
to  a  body  of  persons  less  than  a  state  or  nation,  and  this  meaning 
would  be  satisfied  by  considering  it  as  applicable  to  any  con- 
solidated political  body. 

In  United  States  v.  Quincy,  6  Pet.  445,  467,  an  indictment 
under  the  third  section  of  the  act  of  1818,  the  court  disposed  of 
the  following,  among  other  points,  thus:  "The  last  instruction 
or  opinion  asked  on  the  part  of  the  defendant  was :  That  accord- 
ing to  the  evidence  in  the  cause,  the  United  Provinces  of  Rio  de 
la  Plata  is,  and  was  at  the  time  of  the  offence  alleged  in  the 
indictment,  acknowledged  by  the  United  States,  and  thus  was  a 
'state'  and  not  a  'people'  within  the  meaning  of  the  act  of  Con- 
gress under  which  the  defendant  is  indicted;  the  word  'people' 
in  that  act  being  intended  to  describe  communities  under  an 
existing  government  not  recognized  by  the  United  States;  and 
that  the  indictment  therefore  cannot  be  supported  on  this 
evidence. 

' '  The  indictment  charges  that  the  defendant  was  concerned  in 
fitting  out  the  Bolivar  with  intent  that  she  should  be  employed 
in  the  sendee  of  a  foreign  'people;'  that  is  to  say,  in  the  service 
of  the  United  Provinces  of  Rio  de  la  Plata.  It  was  in  evidence, 
that  the  United  Provinces  of  Rio  de  la  Plata  had  been  regularly 
acknowledged  as  an  independent  nation  by  the  Executive  De- 
partment of  the  Government  of  the  United  States,  before  the 


70  PERSONS  IN  INTERNATIONAL  LAW. 

year  1827.  And  therefore  it  is  argued  that  the  word  'people'  is 
not  properly  applicable  to  that  nation  or  power. 

"The  objection  is  one  purely  technical,  and  we  think  not  well 
founded.  The  word  '  people, '  as  here  used,  is  merely  descriptive 
of  the  power  in  whose  service  the  vessel  was  intended  to  be  em- 
ployed; and  it  is  one  of  the  denominations  applied  by  the  act 
of  Congress  to  a  foreign  power.  The  words  are,  'in  the  service 
of  any  foreign  prince  or  state,  or  of  any  colony,  district,  or 
people.'  The  application  of  the  word  'people'  is  rendered  suffi- 
ciently certain  by  what  follows  under  the  videlicet,  'that  is  to 
say,  the  United  Provinces  of  Rio  de  la  Plata.'  This  particular- 
izes that  which  by  the  word  'people'  is  left  too  general.  The 
descriptions  are  no  way  repugnant  or  inconsistent  with  each 
other,  and  may  well  stand  together.  That  which  comes  under 
the  videlicet,  only  serves  to  explain  what  is  doubtful  and  obscure 
in  the  word  'people.'  ' 

All  that  was  decided  was  that  any  obscurity  in  the  word 
"people"  as  applied  to  a  recognized  government  was  cured  by 
the  videlicet. 

Nesbitt  v.  Lushington,  4  T.  R.  783,  was  an  action  on  a  policy 
of  insurance  in  the  usual  form,  and  among  the  perils  insured 
against  were  "pirates,  rovers,  thieves,"  and  "arrests,  restraints, 
and  detainments  of  all  kings,  princes,  and  people,  of  what  nation, 
condition,  or  quality  soever."  The  vessel  with  a  cargo  of  corn 
was  driven  into  a  port  and  was  seized  by  a  mob  who  assumed  the 
government  of  her  and  forced  the  captain  to  sell  the  corn  at  a 
low  price.  It  was  ruled  that  this  was  a  loss  by  pirates,  and  the 
maxim  noscitur  a  sociis  was  applied  by  Lord  Kenyon  and  Mr. 
Justice  Buller.  Mr.  Justice  Buller  said:  "  'People'  means  'the 
supreme  power;'  'the  power  of  the  country,'  whatever  it  may 
be.  This  appears  clear  from  another  part  of  the  policy;  for 
where  the  underwriters  insure  against  the  wrongful  acts  of  in- 
dividuals, they  describe  them  by  the  names  of  'pirates,  rogues, 
thieves;'  then  having  stated  all  the  individual  persons,  against 
whose  acts  they  engage,  they  mention  other  risks,  those  occa- 
sioned by  the  acts  of  'kings,  princes,  and  people  of  what  nation, 
condition,  or  quality  soever. '  Those  words  therefore  must  apply 
to  'nations'  in  their  collective  capacity." 

As  remarked  in  the  brief  of  Messrs.  Richard  H.  Dana.  Jr.,  and 
Horace  Gray,  Jr.,  filed  by  Mr.  'Gushing  in  Mauran  v.  Insurance 
Co.,  6  "Wall.  1,  the  words  were  "doubtless  originally  inserted 


THE  THREE  FRIENDS.  71 

with  the  view  of  enumerating  all  possible  forms  of  government, 
monarchial,  aristocratical,  and  democratic." 

The  British  Foreign  Enlistment  Act,  59  Geo.  III.  c.  69,  was 
bottomed  on  the  act  of  1818,  and  the  seventh  section  . 
corresponded  to  the  third  section  of  that  act.  Its  terms  were, 
however,  considerably  broader  and  left  less  to  construction.  But 
we  think  the  words  ' '  colony,  district,  or  people ' '  must  be  treated 
as  equally  comprehensive  in  their  bearing  here. 

In  the  case  of  The  Salvador,  L.  R.  3  P.  C.  218,  the  Salvador 
had  been  seized  under  warrant  of  the  governor  of  the  Bahama 
Islands  and  proceeded  against  in  the  Vice-Admiralty  Court  there 
for  breach  of  that  section,  and  was,  upon  the  hearing  of  the 
cause,  ordered  to  be  restored,  the  court  not  being  satisfied  that 
the  vessel  was  engaged,  within  the  meaning  of  the  section,  in 
aiding  parties  in  insurrection'  against  a  foreign  government,  as 
such  parties  did  not  assume  to  exercise  the  powers  of  govern- 
ment over  any  portion  of  the  territory  of  such  government.  This 
decision  was  overruled  on  appeal  by  the  Judicial  Committee  of 
the  Privy  Council,  and  Lord  Cairns,  delivering  the  opinion,  said : 
"  It  is  to  be  observed  that  this  part  of  the  section  is  in  the  alter- 
native. The  ship  may  be  employed  in  the  service  of  a  Foreign 
Prince,  State,  or  Potenate,  or  Foreign  State.  Colony,  Province, 
or  part  of  any  Province  or  People ;  that  is  to  say,  if  you  find  any 
consolidated  body  in  the  Foreign  State,  whether  it  be  the  Poten- 
tate, who  has  the  absolute  dominion,  or  the  Government;  or  a 
part  of  the  Province,  or  of  the  People,  or  the  whole  of  the 
Province  or  the  People  acting  for  themselves,  that  is  sufficient. 
But  by  way  of  alternative  it  is  suggested  that  there  may  be  a  case 
where,  although  you  cannot  say  that  the  Province,  or  the  People, 
or  a  part  of  the  Province  or  People  are  employing  the  ship,  there 
yet  may  be  some  person  or  persons  who  may  be  exercising,  or 
assuming  to  exercise,  powers  of  Government  in  the  Foreign 
Colony  or  State,  drawing  the  whole  of  the  material  aid  for  the 
hostile  proceedings  from  abroad;  and,  therefore,  by  way  of  al- 
ternative, it  is  stated  to  be  sufficient,  if  you  find  the  ship  pre- 
pared or  acting  in  the  service  of  'any  person  or  persons  exercis- 
ing, or  assuming  to  exercise,  any  powers  of  Government  in  or 
over  any  Foreign  State,'  Colony,  Province  or  part  of  any  Prov- 
ince or  People ; '  but  that  alternative  need  not  be  resorted  to,  if 
you  find  the  ship  is  fitted  out  and  armed  for  the  purpose  of 
being  'employed  in  the  service  of  any  Foreign  State  or  People, 
or  part  of  any  Province  or  People. '  .  .  . 


72  PERSONS  IN  INTERNATIONAL  LAW. 

"It  may  be  (it  is  not  necessary  to  decide  whether  it  is  or  not) 
that  you  could  not  state  who  were  the  person  or  persons,  or  that 
there  were  any  person  or  persons  exercising,  or  assuming  to  exer- 
cise, powers  of  Government  in  Cuba,  in  opposition  to  the  Spanish 
authorities.  That  may  be  so :  their  Lordships  express  no  opinion 
upon  that  subject,  but  they  will  assume  that  there  might  be  a 
difficulty  in  bringing  the  case  within  that  second  alternative  of 
the  section,  but  their  Lordships  are  clearly  of  opinion  that  there 
is  no  difficulty  in  bringing  the  case  under  the  first  alternative  of 
the  section,  because  their  Lordships  find  these  propositions 
established  beyond  all  doubt, — there  was  an  insurrection  in  the 
island  of  Cuba;  there  were  insurgents  who  had  formed  them- 
selves into  a  body  of  people  acting  together,  undertaking  and 
conducting  hostilities;  these  insurgents,  beyond  all  doubt, 
formed  part  of  the  Province  or  People  of  Cuba ;  and  beyond  all 
doubt  the  ship  in  question  was  to  be  employed,  and  was  em- 
ployed, in  connection  with  and  in  the  service  of  this  body  of 
insurgents." 

We  regard  these  observations  as  entirely  apposite,  and  while 
the  word  ' '  people ' '  may  mean  the  entire  body  of  the  inhabitants 
of  a  state;  or  the  state  or  nation  collectively  in  its  political 
capacity;  or  the  ruling  power  of  the  country;  its  meaning  in 
this  branch  of  the  section,  taken  in  connection  with  the  words 
"colony"  and  "district,"  covers  in  our  judgment  any  insurgent 
or  insurrectionary  "body  of  people  acting  together,  undertaking 
and  conducting  hostilities,"  although  its  belligerency  has  not 
been  recognized.  Nor  is  this  view  otherwise  than  confirmed  by 
the  use  made  of  the  same  words  in  the  succeeding  part  of  the 
sentence,  for  they  are  there  employed  in  another  connection,  that 
is,  in  relation  to  the  cruising,  or  the  commission  of  hostilities, 
"against  the  subjects,  citizens,  or  property  of  any  foreign  prince 
or  state,  or  of  any  colony,  district,  or  people,  with  whom  the 
United  States  are  at  peace ; ' '  and,  as  thus  used,  are  affected  by 
obviously  different  considerations.  If  the  necessity  or  recogni- 
tion in  respect  of  the  objects  of  hostilities,  by  sea  or  land,  were 
conceded,  that  would  not  involve  the  concession  of  such  necessity 
in  respect  of  those  for  whose  service  the  vessel  is  fitted  out. 

Any  other  conclusion  rests  on  the  unreasonable  assumption 
that  the  act  is  to  remain  ineffectual  unless  the  Government  incurs 
the  restraints  and  liabilities  incident  to  an  acknowledgment  of 
belligerency.  On  the  one  hand,  pecuniary  demands,  reprisals, 
or  even  war,  may  be  the  consequence  of  failure  in  the  perform- 


THE  THREE  FRIENDS.  73 

ance  of  obligations  toward  a  friendly  power,  while  on  the  other, 
the  recognition  of  belligerency  involves  the  rights  of  blockade, 
visitation,  search,  and  seizure  of  contraband  articles  on  the  high 
seas,  and  abandonment  of  claims  for  reparation  on  account  of 
damages  suffered  by  our  citizens  from  the  prevalence  of  warfare. 

No  intention  to  circumscribe  the  means  of  avoiding  the  one 
by  imposing  as  a  condition  the  acceptance  of  the  contingencies 
of  the  other  can  be  imputed. 

Belligerency  is  recognized  when  a  political  struggle  has  at- 
tained a  certain  magnitude  and  affects  the  interests  of  the  recog- 
nizing power;  and  in  the  instance  of  maritime  operations,  rec- 
ognition may  be  compelled,  or  the  vessels  of  the  insurgents,  if 
molesting  third  parties,  may  be  pursued  as  pirates.  The 
Ambrose  Light,  25  Fed.  Rep.  408 ;  3  Whart.  Dig.  Int.  Law, 
§  381 ;  and  authorities  cited. 

But  it  belongs  to  the  political  department  to  determine  when 
belligerency  shall  be  recognized,  and  its  action  must  be  accepted 
according  to  the  terms  and  intention  expressed. 

The  distinction  between  recognition  of  belligerency  and  recog- 
nition of  a  condition  of  political  revolt,  between  recognition  of 
the  existence  of  war  in  a  material  sense  and  of  war  in  a  legal 
sense,  is  sharply  illustrated  by  the  case  before  us.  For  here  the 
political  department  has  not  recognized  the  existence  of  a  de 
facto  belligerent  power  engaged  in  hostility  with  Spain,  but  has 
recognized  the  existence  of  insurrectionary  warfare  prevailing 
before,  at  the  time  and  since  this  forefeiture  is  alleged  to  have 
been  incurred. 

On  June  12,  1895,  a  formal  proclamation  was  issued  by  the 
President  and  countersigned  by  the  Secretary  of  State,  inform- 
ing the  people  of  the  United  States  that  the  island  of  Cuba  was 
"the  seat  of  serious  civil  disturbances  accompanied  by  armed 
resistence  to  the  authority  of  the  established  government  of 
Spain,  a  power  with  which  the  United  States  are  and  desire  to 
remain  on  terms  of  peace  and  amity."  .  .  . 

July  27,  1896,  a  further  proclamation  was  promulgated,  and 
in  the  annual  message  of  December  7,  1896,  the  President  called 
attention  to  the  fact  that  "the  insurrection  in  Cuba  still  con- 
tinues with  all  its  perplexities,"  and  gave  an  extended  review 
of  the  situation. 

We  are  thus  judicially  informed  of  the  existence  of  an  actual 
conflict  of  arms  in  resistance  of  the  authority  of  a  government 
with  which  the  United  States  are  on  terms  of  peace  and  amity, 


74  PERSONS  IN  INTERNATIONAL  LAW. 

although  acknowledgment  of  the  insurgents  as  belligerents  by 
the  political  department  has  not  taken  place;  and  it  cannot  be 
doubted  that,  this  being  so,  the  act  in  question  is  applicable. 

We  see  no  justification  for  importing  into  section  5283  words 
which  it  does  not  contain  and  which  would  make  its  operation 
depend  upon  the  recognition  of  belligerency ;  and  while  the  libel 
might  have  been  drawn  with  somewhat  greater  precision,  we  are 
of  opinion  that  it  should  not  have  been  dismissed.  .  .  . 

The  decree  must  be  reversed.    .    .    . 

MR.  JUSTICE  HARLAN  dissenting.    .    .    . 

NOTE. — Belligerency  has  long  been  recognized  as  a  definite  status  in 
international  law  which  confers  all  the  rights  of  an  independent  gov- 
ernment so  far  as  the  waging  of  war  is  concerned.  It  is  discussed  in 
Rose  v.  Himeley  (1808),  4  Cranch,  241,  United  States  v.  Palmer  (1818), 
3  Wheaton,  610;  The  Divina  Pastora  (1819),  4  >Ib.  52;  United  States 
v.  Klintock  (1820), X5  Ib.  144;  The  Santissima  Trinidad  (1822),  7 
Ib.  283,  337;  The  Prize  Cases  (1863),  2  Black,  635;  Williams  v.  Bruffy 
(1877),  96  U.  S.  176;  Ford  v.  Surget  (1879),  97  U.  S.  594;  Dow  v. 
Johnson  (1880),  100  U.  S.  158,  164;  United  States  v.  Pacific  Railroad 
(1887),  120  U.  S.  227,  233;  Underbill  v.  Hernandez  (1897),  168  U.  S. 
250;  Baldy  v.  Hunter  (1898),  171  U.  S.  388;  Oakes  v.  United  States 
(1899),  174  U.  S.  778;  The  Amy  Warwick  (1862),  2  Sprague,  123.  See 
also  also  Moore,  Digest,  I,  164,  and  Wheaton  (Dana),  34  note  15.  This 
note  by  Richard  Henry  Dana  is  the  classic  statement  of  the  law  of 
belligerency. 

The  recognition  of  the  belligerency  of  an  insurgent  community 
not  only  accords  rights  to  the  insurgents  but  imposes  duties  and 
restrictions  upon  the  recognizing  state.  It  may  no  longer  treat  the 
acts  of  war  of  the  insurgents  as  acts  without  political  authority  and 
it  is  under  obligation  to  observe  strict  neutrality  in  the  contest  be- 
tween the  insurgents  and  the  parent  state.  When  the  United  States 
accorded  to  the  Confederate  States  the  rights  of  a  belligerent,  the 
two  became  hostile  powers  and  their  inhabitants  public  enemies, 
Stovall,  Administrator  v.  United  States  (1891),  26  Ct.  Cl.  226,  240. 
Hence  trade  by  citizens  of  the  loyal  States  having  no  other  object 
than  to  rescue  their  property  in  the  South  was  trading  with  the  enemy 
and  was  illegal,  Montgomery  v.  United  States  (1873),  15  Wallace, 
395;  Cutner  v.  United  States  (1875),  17  Ib.  517;  United  States  v. 
Lapene  (1874),  17  Ib.  601;  Dillon  v.  United  States  (1870),  5  Ct.  Cl. 
586.  The  recognition  of  belligerency  on  the  part  of  neutral  states  is 
a  recognition  of  a  war  status  only  and  accords  no  rights  not  directly 
associated  with  the  conduct  of  the  war,  Latham  v.  Clark  (1870),  25 
Ark.  574;  Shortridge  v.  Mason  (1867),  22  Fed.  Cases,  No.  12812.  Al- 
though the  Confederate  States  were  recognized  by  President  Lincoln 
as  belligerents,  it  was  held  that  such  recognition  did  not  imply  any 
right  on  their  part  to  establish  prize  courts  for  the  condemnation  of 
vessels  or  cargoes  belonging  to  citizens  of  the  loyal  States,  and  the 
decisions  of  Confederate  prize  courts  in  cases  of  that  kind  were  dis- 


NOTE.  75 

regarded,  The  Lilla  (1862),  2  Sprague,  177,  187.  If  the  insurgent  or 
de  facto  government  succeeds  in  establishing  itself,  its  acts  from 
the  beginning  of  its  existence  are  regarded  as  those  of  an  independent 
government,  M'llvaine  v.  Coxe  (1808),  4  Cranch,  209;  United  States 
v.  Rice  (1819),  4  Wheaton,  246;  Underbill  v.  Hernandez  (1897),  168 
U.  S.  250;  Murray  v.  Vanderbilt  (1863),  39  Barbour  (N.  Y.)  140; 
State  of  Yucatan  v.  Argumedo  (1915),  92  N.  Y.  Misc.  547;  Molina  v. 
Comision  Reguladora  del  Mercado  de  Henequen  (1918),  92  N.  J.  Law 
38. 

On  the  recognition  of  the  belligerency  of  the  Confederate  States 
see  Bancroft,  Life  of  W.  H.  Seward;  Nicolay  and  Hay,  Abraham 
Lincoln:  A  History ;  Montague  Bernard,  Historical  Account  of  the  Neu- 
trality of  Great  Britain  during  the  American  Civil  War;  Callahan, 
Diplomatic  History  of  the  Southern  Confederacy;  Hyde,  I,  79;  Moore, 
Digest,  184.  On  the  recognition  of  Cuban  belligerency,  see  Beale, 
"The  Recognition  of  Cuban  Belligerency,"  Harvard  Law  Review,  IX, 
406.  The  general  principles  of  the  recognition  of  belligerency  are 
discussed  in  Cobbett,  Cases  and  Opinions,  I,  63;  Bonfils  (Fauchille), 
sec.  1045;  Hyde,  I,  77;  Moore,  Digest,  I,  164,  248. 

Not  every  petty  contest  by  irresponsible  insurgents  can  be  allowed 
to  disturb  the  normal  relations  of  states,  as  is  inevitably  the  case 
when  the  insurgents  are  recognized  as  belligerents.  It  was  long  In- 
sisted that  any  body  of  insurgents  who  were  not  recognized  as  bellig- 
erents should  be  treated  as  criminals.  If  their  operations  took  place 
on  the  high  seas  they  were  classed  as  pirates.  The  obvious  injustice 
of  this  was  so  great  that  there  has  come  to  be  acknowledged  a  status 
midway  between  peace  and  belligerency  which  is  known  as  insur- 
gency. That  the  recognition  of  belligerency  did  not  apply  to  every 
minor  act  of  insurrection  was  apparently  admitted  in  The  Nueva 
Anna  and  Liebra  (1821),  6  Wheaton,  193.  The  Three  Friends  is  the 
chief  decision  dealing  with  the  distinction  between  belligerency  and 
insurgency.  The  Neutrality  Act  of  the  United  States  and  the  British 
Foreign  Enlistment  Act,  both  of  which  were  enacted  for  the  purpose 
of  assuring  neutrality  in  a  war  between  recognized  belligerents,  have 
been  held  to  apply  to  insurgents,  Wiborg  v.  United  States  (1896),  163 
U.  S.  632;  The  Salvador  (1870),  L.  R.  3  P.  C.  218.  See  also  The 
Ambrose  Light  (1885),  25  Fed.  408  (a  scholarly  opinion);  The  Itata 
(1893),  56  Fed.  505;  Moore,  Digest,  I,  242;  II,  1076;  George  G.  Wilson, 
"Insurgency  and  International  Maritime  Law,"  in  Am  Jour.  Int.  Law, 
I,  46;  International  Law  Situations,  1901,  108;  1902,  57;  1904,  26; 
1907,  127;  1912,  9.  These  discussions  at  the  Naval  War  College,  the 
first  of  which  was  conducted  by  Professor  John  Bassett  Moore,  the 
others  by  Professor  George  G.  Wilson,  are  unusually  valuable  contri- 
butions to  a  branch  of  international  law  which  is  still  in  process  of 
formation.  The  status  of  the  Cuban  insurgents  iu  1895  is  discussed 
in  21  Opinions  of  the  Attorney-General,  267. 


CHAPTEB  in. 

THE  CONTINUING  PERSONALITY  OF  STATES. 
THE  SAPPHIRE. 

SUPREME  COUBT  OF  THE  UNITED  STATES.    1871. 
11  Wallace,  164. 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the 
District  of  California. 

[There  having  been  a  collision  between  the  American  ship 
Sapphire  and  the  French  transport  Euryale,  in  the  harbor  of 
San  Francisco,  a  libel  was  filed  against  the  Sapphire  in  the  name 
of  the  Emperor  Napoleon  III,  then  Emperor  of  the  French,  as 
owner  of  the  Euryale.  The  decree  of  the  District  Court  in  favor 
of  the  libellant  was  affirmed  by  the  Circuit  Court,  from  which 
an  appeal  was  taken  in  July,  1869.  In  September,  1870,  the 
Emperor  Napoleon  was  deposed.  The  case  was  argued  before 
the  Supreme  Court  in  February,  1871.] 

MR.  JUSTICE  BRADLEY  delivered  the  opinion  of  the  court. 

The  first  question  raised  is  as  to  the  right  of  the  French 
Emperor  to  sue  in  our  courts.  On  this  point  not  the  slightest 
difficulty  exists.  A  foreign  sovereign,  as  well  as  any  other 
foreign  person,  who  has  a  demand  of  a  civil  nature  against  any 
person  here,  may  prosecute  it  in  our  courts.  To  deny  him  this 
privilege  would  manifest  a  want  of  comity  and  friendly  feeling. 
Such  a  suit  was  sustained  in  behalf  of  the  King  of  Spain  in  the 
third  circuit  by  Justice  Washington  and  Judge  Peters  in  1810. 
King  of  Spain  v.  Oliver,  2  Washington's  Circuit  Court,  431. 
The  Constitution  expressly  extends  the  judicial  power  to  contro- 
versies between  a  State,  or  citizens  thereof,  and  foreign  States, 
citizens,  or  subjects,  without  reference  to  the  subject-matter  of 
the  controversy.  Our  own  government  has  largely  availed  itself 
of  the  like  privilege  to  bring  suits  in  the  English  courts  in  cases 
growing  out  of  our  late  civil  war.  Twelve  or  more  of  such  suits 

76 


THE  SAPPHIRE.  77 

are  enumerated  in  the  brief  of  the  appellees,  brought  within  the 
last  five  years  in  the  English  law,  chancery,  and  admiralty 
courts.  There  are  numerous  cases  in  the  English  reports  in 
which  suits  of  foreign  sovereigns  have  been  sustained,  though  it 
is  held  that  a  sovereign  cannot  be  forced  into  court  by  suit. 
King  of  Spain  v.  Hullett,  1  Dow.  &  Clarke,  169 ;  S.  C.,  1  Clarke 
&  Finnelly,  333 ;  S.  C.,  2  Bligh,  N.  S.,  31 ;  Emperor  of  Brazil,  6 
Adolphus  &  Ellis,  801 ;  Queen  of  Portugal,  7  Clarke  &  Finnelly, 
466 ;  King  of  Spain,  4  Russell,  225 ;  Emperor  of  Austria,  3  De 
Gex,  Fisher  &  Jones,  174;  King  of  Greece,  6  Bowling's  Practice 
Cases,  12;  S.  C.,  1  Jurist,  944;  United  States,  Law  Reports,  2 
Equity  Cases,  659;  Ditto,  Ib.  2  Chancery  Appeals,  582;  Duke 
of  Brunswick  v.  King  of  Hanover,  6  Beavan,  1 ;  S.  C.,  2  House 
of  Lords  Cases,  1 ;  De  Haber  v.  Queen  of  Portugal,  17  Q.  B.  169 ; 
also  2  Phillimore's  International  Law,  part  vi,  chap,  i;  1 
Daniel's  Chancery  Practice,  chap,  ii,  §  ii. 

The  next  question  is,  whether  the  suit  has  become  abated  by 
the  recent  deposition  of  the  Emperor  Napoleon.  We  think  it 
has 'not.  The  reigning  sovereign  represents  the  national  sov- 
ereignty, and  that  sovereignty  is  continuous  and  perpetual, 
residing  in  the  proper  successors  of  the  sovereign  for  the  time 
being.  Napoleon  was  the  owner  of  the  Euryale,  not  as  an 
individual,  but  as  sovereign  of  France.  This  is  substantially 
averred  in  the  libel.  On  his  deposition  the  sovereignty  does  notx 
change,  but  merely  the  person  or  persons  in  whom  it  resides. 
The  foreign  state  is  the  true  and  real  owner  of  its  public  ves- 
sels of  war.  The  reigning  Emperor,  or  National  Assembly,  or 
other  actual  person  or  party  in  power,  is  but  the  agent  and 
representative  of  the  national  sovereignty.  A  change  in 
such  representative  works  no  change  in  the  national  sovereignty 
or  its  rights.  The  next  successor  recognized  by  our  government 
is  competent  to  carry  on  a  suit  already  commenced  and  receive 
the  fruits  of  it.  A  deed  to  or  treaty  with  a  sovereign  as  such 
inures  to  his  successor  in  the  government  of  the  country.  If 
a  substitution  of  names  is  necessary  or  proper  it  is  a  formal 
matter,  and  can  be  made  by  the  court  under  its  general  power 
to  preserve  due  symmetry  in  its  forms  of  proceeding.  No  allega- 
tion has  been  made  that  any  change  in  the  real  and  substantial 
ownership  of  the  Euryale  has  occurred  by  the  recent  devolution 
of  the  sovereign  power.  The  vessel  has  always  belonged  and 
still  belongs  to  the  French  nation. 

If  a  special  case  should  arise  in  which  it  could  be  shown  that 


78     THE  CONTINUING  PERSONALITY  OF  STATES. 

injustice  to  the  other  party  would  ensue  from  a  continuance  of 
the  proceedings  after  the  death  or  deposition  of  a  sovereign,  the 
court,  in  the  exercise  of  its  discretionary  power,  would  take 
such  order  as  the  exigency  might  require  to  prevent  such  a 
result.  .  .  .  Decree  of  the  Circuit  Court  Reversed.  .  .  . 


KEITH  v.  CIARK. 

SUPEEME  COURT  OF  THE  UNITED   STATES.     1879. 
97  U.  S.  454. 

Error  to  the  Supreme  Court  of  the  State  of  Tennessee. 

[The  State  of  Tennessee  organized  in  1838  the  Bank  of  Ten- 
nessee and  agreed  by  a  clause  in  its  charter  to  receive  its  circu- 
lating notes  in  payment  of  taxes,  but  by  a  constitutional  amend- 
ment adopted  in  1865  it  declared  the  notes  issued  by  the  bank 
during  the  Civil  War  null  and  void  and  forbade  their  ac- 
ceptance for  taxes.  In  accordance  with  this  amendment  the 
defendant,  a  collector  of  taxes,  had  refused  such  notes  when 
tendered  by  the  plaintiff,  who  now  sues  to  recover  the  money 
which  he  had  later  paid  under  protest.] 

MR.  JUSTICE  MILLER  delivered  the  opinion  of  the  court.    .    .    . 

The  second  proposition  ...  is,  as  we  understand  it,  that 
each  of  the  eleven  States  who  passed  ordinances  of  secession  and 
joined  the  so-called  Confederate  States  so  far  succeeded  in  their 
attempt  to  separate  themselves  from  the  Federal  government, 
that  during  the  period  in  which  rebellion  maintained  its  organi- 
zation those  States  were  in  fact  no  longer  a  part  of  the  Union, 
or  if  so,  the  individual  States,  by  reason  of  their  rebellious  at- 
titude, were  mere  usurping  powers,  all  of  whose  acts  of  legisla- 
tion or  administration  are  void,  except  as  they  are  ratified  by 
positive  laws  enacted  since  the  restoration,  or  are  recognized  as 
valid  on  the  principles  of  comity  or  sufferance. 

We  cannot  agree  to  this  doctrine.  It  is  opposed  by  the  in- 
herent powers  which  attach  to  every  organized  political  society 
possessed  of  the  right  of  self-government;  it  is  opposed  to  the 
recognized  principles  of  public  international  law:  and  it  is 
opposed  to  the  well-considered  decisions  of  this  court. 


KEITH  v.  CLARK.  f9 

"Nations  or  States,"  says  Yattel,  "are  bodies  politic,  societies 
of  men  united  together  for  the  promotion  of  their  mutual  safety 
and  advantage  by  the  joint  efforts  of  their  combined  strength. 
Such  a  society  has  her  affairs  and  her  interests.  She  deliberates 
and  takes  resolutions  in  common,  thus  becoming  a  moral  person 
who  possesses  an  understanding  and  a  will  peculiar  to  herself, 
and  is  susceptible  of  obligations  and  rights."  Law  of  Nations, 
sect.  1. 

Cicero  and  subsequent  public  jurists  define  a  State  to  be  a 
body  political  or  society  of  men  united  together  for  the  purpose 
of  promoting  their  mutual  safety  and  advantage  by  their  com- 
bined strength.  Wheaton,  International  Law,  sect.  17.  Such  a 
body  or  society,  when  once  organized  as  a  State  by  an  'estab- 
lished government,  must  remain  so  until  it  is  destroyed.  This 
may  be  done  by  disinte/gration  of  its  parts,  by  its  absorption 
into  and  identification  with  some  other  State  or  nation,  or  by  the 
absolute  and  total  dissolution  of  the  ties  which  bind  the  society 
together.  We  know  of  no  other  wray  in  which  it  can  cease  to  be 
a  State.  No  change  of  its  internal  polity,  no  modification  of  its 
organization  or  system  of  government,  nor  any  change  in  its 
external  relations  short  of  entire  absorption  in  another  State, 
can  deprive  it  of  existence  or  destroy  its  identity.  Id.,  sect.  22. 

Let  us  illustrate  this  by  two  remarkable  periods  in  the  history 
of  England  and  France. 

After  the  revolution  in  England,  which  dethroned  and  decapi- 
tated Charles  I.,  and  installed  Cromwell  as  supreme,  whom  his 
successors  called  a  usurper;  after  the  name  of  the  government 
W7as  changed  from  the  Kingdom  of  England  to  the  Common- 
wealth of  England;  and  when,  after  all  this,  the  son  of  the 
beheaded  monarch  came  to  his  own,  treaties  made  in  the  inter- 
regnum wrere  held  valid, — the  judgments  of  the  courts  were  re- 
spected, and  the  obligations  assumed  by  the  government  were 
never  disputed. 

So  of  France.  Her  bloody  revolution,  which  came  near  dis- 
solving the  bonds  of  society  itself,  her  revolutionary  directory, 
her  consul,  her  Emperor  Napoleon,  and  all  their  official  acts, 
have  been  recognized  by  the  nation,  by  the  other  nations  of 
Europe,  and  by  the  legitimate  monarchy  when  restored,  as  the 
acts  of  France,  and  binding  on  her  people. 

The  political  society  which  in  1796  became  a  State  of  the 
Union,  by  the  name  of  the  State  of  Tennessee,  is  the  same  which 
is  now  represented  as  one  of  those  Slates  in  the  Congress  of  the 


80     THE  CONTINUING  PERSONALITY  OF  STATES. 

United  States.  Not  only  is  it  the  same  body  politic  now,  but  it 
has  always  been  the  same.  There  has  been  perpetual  succession 
and  perpetual  identity.  There  has  from  that  time  always  been  a 
State  of  Tennessee,  and  the  same  State  of  Tennessee.  Its  execu- 
tive, its  legislative,  its  judicial  departments  have  continued  with- 
out interruption  and  in  regular  order.  It  has  changed,  modified, 
and  reconstructed  its  organic  law,  or  State  Constitution,  more 
than  once.  It  has  done  this  before  the  rebellion,  during  the 
rebellion,  and  since  the  rebellion.  And  it  was  always  done  by 
the  collective  authority  and  in  the  name  of  the  same  body  of 
people  constituting  the  political  society  known  as  the  State  of 
Tennessee. 

This  political  body  has  not  only  been  all  this  time  a  State, 
and  the  same  State,  but  it  has  always  been  one  of  the  United 
States, — a  State  of  the  Union.  Under  the  Constitution  of  the 
United  States,  by  virtue  of  which  Tennessee  was  born  into  the 
family  of  States,  she  had  no  lawful  power  to  depart  from  that 
Union.  The  effort  which  she  made  to  do  so,  if  it  had  been  suc- 
cessful, would  have  been  so  in  spite  of  the  Constitution,  by  rea- 
son of  that  force  which  in  many  other  instances  establishes  for 
itself  a  status,  which  must  be  recognized  as  a  fact,  without  refer- 
ence to  any  question  of  right,  and  which  in  this  case  would  have 
been,  to  the  extent  of  its  success,  a  destruction  of  that  Constitu- 
tion. Failing  to  do  this,  the  State  remained  a  State  of  the  Union. 
She  never  escaped  the  obligations  of  that  Constitution,  though 
for  a  while  she  may  have  evaded  their  enforcement.  .  .  . 

If  the  State  of  Tennessee  has  through  all  these  transactions 
been  the  same  State,  and  has  been  also  a  State  of  the  Union,  and 
subject  to  the  obligations  of  the  Constitution  of  the  Union,  it 
would  seem  to  follow  that  the  contract  which  she  made  in  1838 
to  take  for  her  taxes  all  the  issues  of  the  bank  of  her  own  crea- 
tion, and  of  which  she  was  sole  stockholder  and  owner,  was  a 
contract  which  bound  her  during  the  rebellion  and  which  the 
Constitution  protected  then  and  now,  as  well  as  before.  Mr. 
Wheaton  says:  "As  to  public  debts, — whether  due  to  or  from 
the  State, — a  mere  change  in  the  form  of  the  government,  or  in 
the  person  of  the  ruler,  does  not  affect  their  obligation.  The 
essential  power  of  the  State,  that  which  constitutes  it  an  inde- 
pendent community,  remains  the  same :  its  accidental  form  only 
is  changed.  The  debts  being  contracted  in  the  name  of  the  State, 
by  its  authorized  agents,  for  its  public  use,  the  nation  continues 
liable  for  them,  notwithstanding  the  change  in  its  internal  con- 


NOTE.  81 

stitution.  The  new  government  succeeds  to  the  fiscal  rights,  and 
is  bound  to  fulfil  the  fiscal  obligations,  of  the  former  govern- 
ment." International  Law,  sect.  30.  And  the  citations  which 
he  gives  from  Grotius  and  Puffendorf  sustain  him  fully. 

We  are  gratified  to  know  that  the  Supreme  Court  of  the  State 
of  Tennessee  has  twice  affirmed  the  principles  just  laid  down  in 
reference  to  the  class  of  bank-notes  now  in  question.  .  In  a  suit 
brought  by  the  State  of  Tennessee  against  this  very  bank  of  Ten- 
nessee, to  wind  up  its  affairs  and  distribute  its  assets,  that  court, 
in  April,  1875,  decreed,  among  other  things,  "that  the  acts  by 
which  it  was  attempted  to  declare  the  State  independent,  and  to 
dissolve  her  connection  with  the  Union,  had  no  effect  in  chang- 
ing the  character  of  the  bank,  but  that  it  had  the  same  powers, 
after  as  before  those  acts,  to  carry  on  a  legitimate  business,  and 
that  the  receiving  of  deposits  was  a  part  of  such  legitimate  busi- 
ness." "That  the  notes  of  the  bank  issued  since  May  6,  1861, 
held  by  Atchison  and  Duncan,  and  set  out  in  their  answer,  are 
legal  and  subsisting  debts  of  the  bank,  entitled  to  payment  at 
their  face  value,  and  to  the  same  priority  of  payment  out  of  the 
assets  of  the  bank  as  the  notes  issued  before  May  6,  1861." 

At  a  further  hearing  of  the  same  case,  in  January,  1877,  that 
court  reaffirmed  the  same  doctrine,  and  also  held  that  the  notes 
were  not  subject  to  the  Statute  of  Limitations,  and  were  not 
bound  by  it.  State  of  Tennessee  v.  Bank  of  Tennessee,  not  re- 
ported. This  decision  was  in  direct  conflict  with  schedule  6  of 
the  constitutional  amendment  of  1865,  which  declared  all  issues 
of  the  bank  after  May  6,  1861,  void,  and  it  necessarily  held 
that  the  schedule  was  itself  void  as  a  violation  of  the  Federal 
Constitution.  .  .  . 

The  judgment  of  the  Supreme  Court  of  Tennessee  will,  there- 
fore, be  reversed.  .  .  . 

MR.  CHIEF  JUSTICE  WAITE,  MR.  JUSTICE  BRADLEY,  and  MR. 
JUSTICE  HARLAN  dissented.  .  .  . 

NOTE. — The  continuity  of  the  identity  of  a  state  regardless  of  changes 
in  its  territory  and  form  of  government  is  a  principle  of  cardinal 
importance  in  determining  its  international  rights  and  liabilities.  It 
is  so  well  established  that  it  is  seldom  questioned  in  any  international 
controversy,  but  a  few  examples  will  demonstrate  the  necessity  of  its 
recognition.  Since  the  establishment  of  the  independence  of  the  United 
States,  its  area  has  been  trebled  by  the  annexation  of  Florida,  and  the 
territory  extending  from  the  Mississippi  to  the  Pacific  coast  as  well 
as  Porto  Rico,  Alaska,  Hawaii  and  the  Philippines,  but  it  remains  tha 
same  political  entity.  Since  1789  France  has  been  in  turn  a  kingdom, 


82      THE  CONTINUING  PERSONALITY  OF  STATES. 

a  republic,  an  empire,  a  kingdom,  a  republic,  an  empire  and  again  a 
republic,  but  throughout  these  changes  it  continues  to  be  France,  and 
it  is  bound  by  any  engagements  made  in  its  behalf  by  any  of  the 
governmental  agents  which  have  been  authorized  from  time  to  time 
to  act  for  it.  Perhaps  the  most  striking  example  of  a  personality 
which  has  survived  radical  changes  in  both  territory  and  government 
is  the  kingdom  of  Italy.  By  a  series  of  annexations  culminating  in 
1870,  the  kingdom  of  Sardinia,  comprising  the  island  of  that  name 
and  the  northwest  corner  of  the  Italian  peninsula,  succeeded  in  unit- 
ing with  itself  all  the  other  states  in  Italy,  which  it  organized  into 
the  kingdom  of  Italy  with  its  seat  at  Rome.  Although  its  territory 
was  vastly  increased,  its  name  changed,  a  new  government  created 
and  its  capital  established  at  a  point  outside  of  the  original  state, 
yet  the  kingdom  of  Italy  regards  itself  as  the  same  political  entity 
as  the  kingdom  of  Sardinia  and  acknowledges  itself  bound  by  the 
treaties  made  by  Sardinia.  This  however  seems  a  somewhat  forced 
identification,  and  some  jurists  of  distinction,  e.  g.  Holzendorff  and 
Hall,  think  that  the  kingdom  of  Italy  should  be  regarded  as  a  new 
creation.  The  case  is  certainly  much  more  extreme  than  that  pre- 
sented by  the  territorial  growth  of  the  United  States  and  the  govern- 
mental changes  in  France. 

The  continuing  personality  of  the  state  regardless  of  changes  in  its 
territory  or  form  of  government  is  important  chiefly  in  connection 
with  the  contracts  of  the  state.  When  a  government  is  established  as 
the  recognized  government  of  a  state,  it  may  assert  any  right  which 
accrued  to  the  state  under  any  preceding  government  whether  de  facto 
or  de  jure,  State  of  Yucatan  v.  Argumedo  (1915),  92  N.  Y.  Misc.  547. 
Territorial  or  governmental  changes  do  not  release  it  from  its  con- 
tracts or  treaty  obligations  unless  they  make  those  obligations  im- 
possible of  fulfillment  or  create  a  situation  which  could  not  have  been 
in  contemplation  when  they  were  entered  into,  Republic  of  Peru  v. 
Dreyfus  (1888),  L.  R.  38  Ch.  D.  348.  Likewise  the  substitution  of  one 
form  of  government  for  another  does  not  affect  the  duty  of  the  state 
as  to  its  debts.  When  Brazil  was  changed  from  an  empire  to  a  repub- 
lic in  1889,  the  new  government  immediately  announced  that  the 
obligations  contracted  by  the  imperial  government  would  not  be 
questioned.  In  Agency  of  American  Car  &  Foundry  Co.,  Limited,  v. 
American  Can  Co.  (1919),  258  Fed.  363,  369,  the  question  at  issue 
being  the  power  of  an  agent  of  the  Kerensky  Government  to  make 
an  effective  settlement  of  a  contract  entered  into  by  the  government 
of  the  Czar,  the  court  said: 

The  principle  of  law  is  well  established  that  the  rights 
and  liabilities  of  a  state  are  not  affected  by  a  change  in  the 
form  or  the  personnel  of  a  government,  no  matter  how  that 
change  may  be  effected.  The  obligations  of  a  state,  the  debts 
due  to  and  from  it,  are  not  affected  by  any  transformation  in 
the  internal  organization  of  its  government. 

If,  however,  the  debts  have  been  contracted  with  reference  to  a 
specific  portion  of  its  territory,  the  loss  of  that  territory  may  in  some 


NOTE.  83 

cases  affect  the  obligation  which  was  contracted  on  the  assumption 
of  its  continued  possession  and  enjoyment.  As  to  such  cases  it  is 
difficult  to  lay  down  general  rules.  Each  must  be  judged  on  its  own 
facts. 

As  to  how  far  the  acts  of  a  de  facto  government  are  "binding  upon 
its  successor,  see  Republic  of  Peru  v.  Dreyfus  (1888),  L.  R.  38  Chan- 
cery Division,  348;  United  States  v.  Prioleau  (1865),  35  L.  J.  Chan. 
Rep.  N.  S.  7;  United  States  v.  McRae  (1869),  L.  R.  8  Eq.  69;  United 
States  v.  Home  Insurance  Co.  (1875),  22  Wallace,  99;  Williams  v. 
Bruffy  (1877),  96  U.  S.  176;  Coffee  v.  Groover  (1887),  123  U.  S.  1; 
Baldy  v.  Hunter  (1898),  171  U.  S.  388;  MacLeod  v.  United  States 
(1913),  229  U.  S.  416. 

The  preservation  of  the  identity  of  the  state's  personality  throughout 
changes  in  territory  or  government  should  be  clearly  distinguished 
from  the  question  of  state  succession  or  the  transmission  of  rights 
and  obligations  as  concomitant  with  a  transfer  of  jurisdiction.  For 
further  discussion  of  the  principal  of  the  continuity  of  state  life, 
see  Rivier,  I,  62;  Cobbett,  Cases  and  Opinions,  I,  78;  Moore,  Digest, 
I,  248. 


CHAPTER  IV. 

STATE  SUCCESSION. 
UNITED  STATES  OF  AMERICA  v.  PRIOLEAU. 

COUBT  OF  CHANCEKY  OF  ENGLAND.     1865. 
35  Law  Journal,  Chancery,  N.  S.  7. 

[The  government  of  the  Confederate  States  owned  certain 
cotton  which  it  consigned  to  the  defendant  Prioleau  and  others, 
at  Liverpool,  authorizing  them  to  sell  it,  and  recoup  themselves 
for  certain  charges  out  of  the  proceeds.  Upon  the  downfall  of 
the  Confederacy  the  United  States  filed  a  bill  praying  to  have 
the  cotton,  then  in  Liverpool,  delivered  up  to  it,  and  for  an 
injunction  and  a  receiver.  The  defendants  proved  a  lien  upon 
the  cotton  for  £20,000.] 

WOOD,  V.  C. — There  are  one  or  two  points  which,  I  think,  are 
tolerably  clear  in  this  case.  The  first  point  is  with  reference 
to  the  right  of  the  United  States  of  America,  at  this  moment, 
to  the  cotton,  subject  to  the  agreement.  I  treat  it  first  in  that 
way.  It  has  scarcely  been  disputed  on  the  present  argument, 
and  could  hardly  be  disputed  at  any  further  stage  of  the  in- 
quiry, that  the  right  is  clear  and  distinct,  because  the  cotton 
in  question  is  the  admitted  result  of  funds  raised  by  a  de  facto 
government,  exercising  authority  in  what  were  called  the  Con- 
federate States  of  America;  that  is  to  say,  several  of  those 
States  which,  in  union,  formerly  constituted  the  United  States, 
and  which  now,  in  fact,  constitute  them;  and  that  de  facto  gov- 
ernment, exercising  its  powers  over  a  considerable  number  of 
States  (more  than  one  would  be  quite  enough),  raises  money — 
be  it  by  voluntary  contribution,  or  be  it  by  taxation,  is  not  of 
much  importance.  The  defendant  Prioleau,  in  cross-examina- 
tion, admits  that  they  exercised  considerable  power  of  taxation ; 
and  with  those  means,  and  claiming  to  exercise  that  authority, 
they  obtained  from  several  of  the  States  of  America  funds,  by 

84 


UNITED  STATES  v.  PEIOLEAU.  85 

which  they  purchased  this  cotton  for  the  use  of  the  de  facto 
government.  That  being  so,  and  that  de  facto  government 
being  displaced,  I  apprehend  it  is  quite  clear  that  the  United 
States  of  America  (that  is  to  say,  the  government  which  has 
been  successful  in  displacing  the  de  facto  government,  and 
whose  authority  was  usurped  or  displaced,  or  whatever  term 
you  may  choose  to  apply  to  it),  the  authority  being  restored, 
stand,  in  reference  to  this  cotton,  in  the  position  of  those  who 
have  acquired,  on  behalf  of  the  citizens  of  the  United  States, 
a  public  property;  because  otherwise,  as  has  been  well  said, 
there  would  be  no  body  who  could  sue  in  respect  of,  or  deal 
with  property  that  has  been  raised,  not  by  contribution  of  any 
one  sovereign  state  (which  might  raise  a  question,  owing  to  the 
peculiar  constitution  of  the  Union,  if  it  had  been  raised  in  Vir- 
ginia or  Texas,  or  in  any  given  State),  but  the  cotton  is  the 
product  of  levies,  voluntary  or  otherwise,  on  the  members  of 
the  several  States  which  have  united  themselves  into  the  Con- 
federate States  of  America,  and  which  are  now  under  the 
control  of  the  present  plaintiffs,  and  are  represented,  for  all 
purposes,  by  the  present  plaintiffs.  That  being  so,  the  right  of 
the  present  plaintiffs  to  this  cotton,  subject  to  this  agreement 
is,  I  think,  clear,  because  the  agreement  is  an  agreement  pur- 
porting to  be  made  on  behalf  of  the  then  de  facto  existing 
government,  and  not  of  any  other  persons.  That  case  of  The 
King  of  the  Two  Sicilies  [1  Sim.  N.  S.  301]  and  the  case  of  The 
King  of  Spain,  [1  Dow.  &  Cl.  169],  and  other  cases  of  the  same 
kind,  which  it  is  not  necessary  to  go  through,  show  that  when- 
ever a  government  de  facto  has  obtained  the  possession  of 
property,  as  a  government,  and  for  the  purposes  of  the  govern- 
ment de  facto,  the  government  which  displaces  it  succeeds  to 
all  the  rights  of  the  former  government,  and,  among  other 
things,  succeeds  to  the  property  they  have  so  acquired. 

Now  I  come  to  the  second  head  of  the  question,  and  I  confess 
at  this  moment,  as  at  present  advised  ...  I  do  not  feel 
much  doubt  on  the  subject,  namely,  the  question  whether  or  not, 
taking  this  property,  they  must  or  must  not  take  it  subject  to 
the  agreement.  It  appears  to  me,  at  present,  they  must  take  it 
subject  to  the  agreement.  It  is  an  agreement  entered  into  by 
a  de  facto  government,  treating  with  persons  who  have  a  perfect 
right  to  deal  with  them.  I  apprehend  if  they  had  been  Ameri- 
can subjects  they  might  do  so.  One  of  them,  Priole.au,  is  not  an 
American  subject  (at  least  I  have  no  evidence  that  he  is)  j 


86  STATE  SUCCESSION. 

he  is  a  naturalized  British  subject;  he  would  have  a  perfect 
right  to  deal  with  a  de  facto  government ;  and  it  cannot  be  com- 
pared with  any  one  of  those  cases  Mr.  Gifford  put,  of  persons 
taking  the  property  of  another  with  knowledge  of  the  rights  of 
that  other.  That  is  a  species  of  argument  that  cannot  be 
applied  to  international  cases  of  this  description,  and  for  a  very 
good  reason;  if  so,  there  would  be  no  possibility  during  the 
existence  of  a  government  de  facto  of  any  person  dealing  with 
that  government  in  any  part  of  the  world.  The  Courts  of 
every  country  recognize  a  government  de  facto  to  this  extent, 
for  the  purpose  of  saying — you  are  established  de  facto,  if  you 
are  carrying  on  the  course  of  government,  if  you  are  allowed 
by  those  whom  you  affect  to  govern  to  levy  taxes  on  them,  and 
they  pay  those  taxes,  and  contribution  is  made  accordingly,  or 
you  are  acquiring  property,  and  are  at  war,  having  the  rights 
of  belligerents,  not  being  treated  as  mere  rebels  by  persons  who 
say  they  are  the  authorized  government  of  the  country.  Other 
nations  can  have  nothing  to  do  with  that  matter.  They  say  we 
are  bound  to  protect  our  subjects  who  treat  with  the  existing 
government ;  and  we  must  give  to  those  subjects,  in  our  country, 
every  right  which  the  government  de  facto  can  give  to  them, 
and  must  not  allow  the  succeeding  government  to  assert  any 
right  as  against  the  contracts  which  have  been  entered  into  by 
the  government  de  facto;  but,  as  expressed  by  Lord  Cranworth 
in  the  case  referred  to,  they  must  succeed  in  every  respect  to 
the  property  as  they  find  it,  and  subject  to  all  the  conditions 
and  liabilities  to  which  it  is  subject  and  by  which  they  are 
bound.  Otherwise,  I  do  not  see  any  answer  to  Mr.  James'  il- 
lustration, and  I  do  not  see  why  there  should  not  have  been  a 
bill  filed  to  have  the  Alabama  delivered  up;  .  .  .  because 
on  the  theory  of  the  present  plaintiffs,  it  was  their  property  just 
as  much  as  their  cotton  is  now.  If  the  case  had  been  this  (and 
it  is  the  only  case  I  can  consider  as  making  any  difference, 
but  that  difference  would  be  fatal  to  the  plaintiffs'  case  in 
another  point  of  view)  :  if  they  had  been  a  set  of  marauders,  a 
set  of  robbers  (as  was  said  to  be  the  case  in  the  kingdom  of 
Naples,  truly  or  untruly),  devastating  the  country,  and  acquir- 
ing property  in  that  way,  and  then  affecting  to  deal  with  your 
subjects  in  England,  it  would  not  be  the  United  States,  but  the 
individuals  who  had  been  robbed  and  suffered,  who  could  come 
as  plaintiffs.  That  would  be  fatal  to  the  claim  of  the  United 
States  as  plaintiffs.  The  United  States  could  only  come  to 


UNITED  STATES  v.  McRAE.  87 

claim  this  because  it  has  been  raised  by  public  contribution; 
and  although  the  United  States,  who  are  now  the  government 
de  facto  and  de  jure,  claim  it  as  public  property,  yet  it  would 
not  be  public  property  unless  it  was  raised,  as  I  have  said,  by 
exercising  the  rights  of  government,  and  not  by  means  of  mere 
robbery  and  violence. 

I  confess,  therefore,  I  have  so  little  doubt,  that  this  agree- 
ment is  one  that  would  be  binding  on  the.  plaintiffs,  that  I 
cannot  act  against  these  gentlemen  without  securing  to  them  the 
reasonable  benefit  of  this  agreement;  and  I  cannot  put  them 
under  any  terms  which  would  exclude  them  from  the  reasonable 
benefit  of  what  they  are  entitled  to,  and  must  be  held  entitled 
to,  as  I  think,  at  the  hearing  of  the  cause.  .  .  . 


i 

UNITED  STATES  OF  AMERICA  v.  McRAE. 

COUBT  OF  CHANCERY  OF  ENGLAND.     1869. 
Law  Reports,  8  Eq.  69. 

The  bill  in  this  case  was  filed  by  the  United  States  of  America, 
for  the  purpose  of  obtaining  an  account  of  all  moneys  and  goods 
which  came  to  the  hands  of  the  defendant,  as  agent,  or  other- 
wise, on  behalf  of  "the  pretended  Confederate  government  dur- 
ing the  late  insurrection,"  and  of  his  dealings  therewith,  and 
payment  by  the  Defendant  of  the  moneys  which  on  taking  such 
account  might  be  in  his  hands,  and  a  delivery  over  of  the  goods 
in  his  possession. 

The  bill  stated  the  rebellion  in  1861,  and  the  establishment 
of  a  pretended  government  under  the  style  of  the  Confederate 
States  of  America,  which  assumed  the  administration  of  public 
affairs  there,  and  exercised  such  usurped  authority  during  the 
rebellion  and  until  the  rebellion  was  put  an  end  to.  Such  pre- 
tended government  possessed  themselves  of  divers  moneys,  goods 
and  treasure,  part  of  the  public  property  of  the  plaintiffs; 
and  other  moneys  and  goods  were  from  time  to  time  paid  and 
contributed  to  them  by  divers  persons  inhabitants  of  the  United 
States,  and  owing  allegiance  to  Plaintiffs,  or  were  seized  and 
acquired  by  the  said  pretended  government  in  the  exercise  of 
their  usurped  authority,  and  all  such  moneys,  and  goods  became 
part  of  the  public  property  of  the  pretended  government,  or 


88  STATE  SUCCESSION. 

were  employed,  or  intended  to  be  employed,  for  the  purposes  of 
the  said  pretended  government,  and  in  aid  of  the  said  rebellion. 
The  pretended  government  and  their  agents  sent  to  agents  and 
other  persons  in  England  large  amounts  of  money  to  be  laid  out 
in  purchasing  goods,  or  otherwise  for  the  use  of  such  pre- 
tended government,  and  also  sent  to  England  large  quantities 
of  goods  to  be  sold,  and  the  proceeds  to  be  laid  out  in  purchas- 
ing goods  for  the  said  pretended  government.  Then  followed 
this  statement  (paragraph  4)  : — 

"The  said  pretended  government  and  their  agents  at  the  time 
aforesaid  sent  large  sums  of  money  and  large  quantities  of 
goods  to  the  Defendant,  Colin  J.  McRae,  and  the  said  Colin  J. 
McRae  sold  a  large  part  of  the  said  goods  and  received  the 
moneys  from  such  sale,  and  at  the  dissolution  of  the  said  pre- 
tended government  the  said  Defendant  had  in  his  possession 
or  power  large  sums  of  money  and  large  quantities  of  goods 
which  had  been  so  sent  to  him  as  aforesaid,  or  which  had  arisen 
from  moneys  and  goods  so  sent  to  him  as  aforesaid." 

The  bill,  after  stating  the  suppression  of  the  rebellion,  and 
the  submission  of  the  persons  forming  such  pretended  govern- 
ment to  the  authority  of  the  United  States  government,  alleged 
that  "all  the  joint  or  public  property  of  the  persons  who  con- 
stituted the  pretended  Confederate  government,  including  the 
said  moneys  and  goods,  have  vested  in  Plaintiffs,  and  the  so- 
called  Confederate  government  does  not,  nor  does  any  person 
on  their  behalf,  now  claim  to  be  entitled  to,  or  interested  in, 
the  said  moneys  and  goods,"  which  "are  now  the  absolute 
property  of  Plaintiffs,  and  ought  to  be  paid  and  delivered  to 
them."  To  this  bill,  which  was  filed  in  June,  1866,  the  Defend- 
ant McRae  pleaded  that  by  an  Act  of  Congress  of  the  Plaintiffs, 
the  United  States  of  America,  approved  the  17th  day  of  July, 
1862,  the  property  of  all  persons  holding  any  office  or  agency 
under  the  government  of  the  so-called  Confederate  States  was 
liable  to  confiscation;  that  proceedings  were  actually  pending 
in  America  for  confiscation  of  his  property  there,  on  the  ground 
of  his  having  so  acted  as  agent;  that  the  Defendant  could  not 
answer  the  bill  without  subjecting  his  property  to  confiscation; 
and  that  the  Plaintiffs  could  not  have  relief  without  waiving 
the  right  to  confiscate.  .  .  . 

The  Vice-Chancellor  asked  if  the  Plaintiffs  were  willing  to 
have  the  account  taken,  as  it  would  be  taken,  between  the  Con- 
federate government,  on  the  one  hand,  and  the  Defendant,  as 


UNITED  STATES  v.  McRAE.  89 

agent  of  such  government,  on  the  other  hand;  and  to  pay  what 
(if  anything)  might  be  found  due  from  them  on  the  footing  of 
such  account. 

Sir  Eoundell  Palmer  [counsel  for  the  United  States]  declined 
to  accept  the  decree  in  any  form  which  would  recognise  the 
authority  of  the  belligerent  states,  or  involve  any  payment  to 
their  agent. 

SIR  W.  M.  JAMES,  V.  C.  ...  I  have  considered  this  case, 
and  I  propose  to  deal  with  it  as  if  the  Plaintiffs,  instead  of 
being  a  foreign  state  had  been  the  Government  of  India,  and 
as  if  the  Defendant  had  been  the  agent  of  the  persons  who  for 
several  months  had  possession  of  the  city  of  Lucknow  and  the 
surrounding  territory  of  Oude,  and  assumed  to  exercise  the 
rights  of  sovereignty  there  until  their  rebellion  was  finally 
suppressed  by  Lord  Clyde.  Upon  the  suppression  of  such  a  re- 
bellion and  the  determination  of  such  an  usurpation  very  dif- 
ferent rights  in  respect  of  the  property  seized  and  acquired 
during  the  rebellion  and  usurpation  accrue  to  the  legiti- 
mate government  recovering  its  power  and  possessions.  The 
moneys,  goods,  and  treasure  which  were  at  the  outbreak 
the  public  property  of  the  plaintiffs,  and  which  were  seized  by 
the  rebels,  still  continued  their  moneys,  goods,  and  treasure, 
their  rights  of  property  and  rights  of  possession  being  in  no- 
wise divested  or  defeated  by  the  wrongful  seizure  of  them. 
And  if  at  the  end  of  the  rebellion  any  of  such  moneys,  goods, 
or  treasure,  or  the  produce  thereof  capable  of  being  identified 
or  ear-marked,  could  be  traced  into  the  possession  of  any  per- 
son, the  rightful  owners  would  be  entitled  to  apply  to  the 
proper  tribunal  having  jurisdiction  over  such  person  to  award 
restitution.  If  such  person  were  an  accomplice,  a  particeps 
criminis,  or  had  received  the  property  with  full  notice  of  the 
title  of  the  rightful  owner,  the  latter  would  be  entitled  to  an 
order  for  restitution  simpliciter.  If  he  had  received  it  as  an 
innocent  factor,  banker,  or  other  agent,  the  right  to  restitu- 
tion would  be  or  might  be  of  a  more  qualified  or  limited  kind; 
it  would  be  or  might  be  subject  to  any  claim  or  lien  which  in 
his  character  of  innocent  bailee  without  notice  he  might  have. 
The  rights  of  the  owner  and  the  rights  of  the  holder  would  in 
that  case  depend  on  the  general  law  of  bailment  as  applicable 
to  the  special  circumstances  of  the  bailment.  But  with  respect 
to  the  other  moneys  and  goods  paid  or  contributed  to,  or  seized 
and  acquired  by,  the  pretended  government  in  the  exercise  of 


90  STATE  SUCCESSION. 

their  usurped  authority,  the  right  of  the  restored  government 
is  of  a  very  different  character.  It  cannot  be  contended  that 
such  moneys  or  goods  became  by  the  mere  fact  of  the  voluntary 
contribution  of  accomplices,  or  by  the  spoliation  of  innocent, 
persons,  vested  in  right  of  possession  or  right  of  property  in 
the  lawful  government.  The  moneys  voluntarily  contributed 
to  the  rebels  could  not,  to  use  our  legal  phraseology,  be  con- 
sidered as  moneys  had  and  received  to  the  use  of  the  lawful  gov- 
ernment, and  the  right  of  property  and  the  right  of  possession 
in  respect  of  the  specific  property  taken  by  force  from  inno- 
cent persons  would  still  remain  in  such  persons.  But  there  is 
a  right  incident  to  the  power  of  sovereignty  which  is  applicable 
to  the  case.  I  apprehend  it  to  be  the  clear  public  universal  law 
that  any  government  which  de  facto  succeeds  to  any  other  gov- 
ernment, whether  by  revolution  or  restoration,  conquest  or  re- 
conquest,  succeeds  to  all  the  public  property,  to  everything  in 
the  nature  of  public  property,  and  to  all  rights  in  respect  of 
the  public  property  of  the  displaced  power,  whatever  may  be 
the  nature  or  origin  of  the  title  of  such  displaced  power.  Any 
such  public  money  in  any  treasury,  any  such  public  property 
found  in  any  warehouses,  forts,  or  arsenals,  would,  on  the 
success  of  the  new  or  restored  power,  vest  ipso  facto  in  such 
power;  and  it  would  have  the  right  to  call  to  account  any 
fiscal  or  other  agent,  or  any  debtor  or  accountant  to  OK  of  the 
persons  who  had  exercised  and  had  ceased  to  exercise  the  au- 
thority of  a  government,  the  agent,  debtor,  or  accountant 
having  been  the  agent,  debtor,  or  accountant  of  such  persons 
in  their  character  or  pretended  character  of  a  government. 
But  this  right  is  the  right  of  succession,  is  the  right  of  repre- 
sentation, is  a  right  not  paramount,  but  derived,  I  will  not  say 
under,  but  through,  the  suppressed  and  displaced  authority, 
and  can  only  be  enforced  in  the  same  way,  and  to  the  same 
extent,  and  subject  to  the  same  correlative  obligations  and 
rights  as  if  that  authority  had  not  been  suppressed  and  dis- 
placed and  was  itself  seeking  to  enforce  it.  Analogies,  no  doubt, 
are  often  misleading,  but  there  is  an  analogy  which,  I  think, 
in  this  case  apt  and  not  misleading.  A  person,  say  A.,  may  hap- 
pen to  be  the  legal  personal  representative  or  assignee  in  bank- 
ruptcy of  a  wrongdoer  who  has  tortiously  acquired  his  prop- 
erty, and  which  property  can  be  traced  to  the  possession  of  the 
wrongdoer's  general  agent.  In  that  state  of  things  A.  has  a 
right  to  call  the  latter  to  account  in  respect  of  the  property 


UNITED  STATES  v.  McBAE.  91 

so  traced,  and  he  has  another  and  a  very  distinct  right  to 
call  him  to  account  generally  in  respect  of  his  agency.  In  the 
first  case  he  deals  with  him  simply  as  the  holder  of  stolen 
goods.  In  the  second,  he  must,  if  he  proceed  at  all,  proceed  on 
the  privity  of  title,  and  must  have  his  account  taken  on  the 
footing  of  recognising  and  adopting  the  agency;  and  if  he 
proceeds  in  this  Court,  according  to  the  ordinary  rules  by  which 
this  Court  takes  accounts  and  administers  equity  as  between 
principal  and  agent.  It  was  on  this  ground,  therefore,  that  I 
asked  the  counsel  for  the  Plaintiffs,  at  the  close  of  the  case, 
whether  they  were  prepared  to  submit  to  such  an  ordinary 
account — that  is  to  say,  to  have  the  account  taken  as  it  would 
be  taken  between  the  so-called  Confederate  government  on  the 
one  hand  and  the  Defendant  as  the  agent  of  such  government  on 
the  other  hand,  and  to  pay  what  on  the  footing  of  such  account 
should  be  found  due  from  them  if  the  result  of  the  investigation 
should  show  a  balance  due  to  the  accounting  party.  For  very 
obvious  reasons  the  Plaintiffs'  counsel  declined  accepting  such  a 
decree  as  that.  I  can  easily  conceive  the  many  public  reasons 
which  would  preclude  the  Plaintiffs  from  giving  anything  like 
the  faintest  recognition  of  the  public  character  or  public  func- 
tions of  such  agents  of  the  rebellion  or  secession  as  the  Defend- 
ant, who  was  the  special  agent  of  the  Confederate  loan.  But 
they  cannot  in  a  Court  of  justice  approbate  and  reprobate. 
They  cannot  claim  from  an  agent  of  the  Confederate  govern- 
ment an  account  of  his  agency,  arid  at  the  same  time  repudiate 
all  privity  of  title  with  him  and  his  former  principals.  This, 
to  my  mind,  obvious  result  was  as  obviously  present  to  the 
mind  of  the  careful  and  experienced  pleader  by  whom. the  bill 
was  drawn;  and  reading  the  bill  now  by  the  light  thrown  upon 
it  by  these  considerations,  and  by  the  refusal  of  the  Plaintiffs  to 
submit  to  such  a  mode  of  accounting  as  I  have  suggested,  I  am 
satisfied  the  bill  is  intentionally  drawn  so  as  to  omit  any  claim 
founded  on  any  right  to  an  account  derived  from  or  through  the 
Confederate  government,  and  that  it  was  intended  to  be,  and 
was,  based  entirely  on  the  paramount  title  of  the  Plaintiffs  to 
those  moneys  and  goods  which  were  originally  theirs,  and  in 
respect  of  which  they  could  treat  the  possession  of  the  Defend- 
ant as  the  possession  of  the  agent  of  public  plunderers,  or 
to  specific  moneys  and  goods  which  had  vested  in  them  in 
property  and  right  of  possession,  and  which  were  in  the 
Defendant's  actual  possession,  or  had  reached  his  hands  at 


92  STATE  SUCCESSION. 

or  after  the  suppression  of  the  rebellion.  It  is  necessary 
to  consider  the  bill  as  respects  that  part  of  the  case,  and 
here  it  seems  to  me  to  fail  absolutely.  There  is  no  allegation 
of  any  equity,  there  is  no  allegation  of  anything  but  the 
plainest  and  most  ordinary  legal  right — the  right  to  recover 
large  sums  of  money  and  large  quantities  of  goods  of  the 
Plaintiffs  in  the  hands  of  the  Defendant,  without  any  suggestion 
of  anything  whatever  to  render  necessary  or  proper,  or  to  jus- 
tify, the  interposition  of  this  Court  as  a  Court  of  Equity.  But 
of  this  allegation,  insufficient  as  it  appears  to  me  to  justify  a 
bill  for  an  account  in  equity,  there  is  not,  in  my  judgment,  a 
particle  of  evidence.  There  is  abundant  evidence  of  the  agency 
of  the  Defendant  as  agent  of  the  Confederate  government.  There 
is  abundant  evidence  that  large  amounts  of  money  belonging 
to  that  government  as  its  public  property  were  dealt  with  in 
such  a  way  as  to  make  the  Defendant  accountable  to  his  prin- 
cipals for  his  receipts  and  payments ;  but  of  the  essential  fact — 
essential,  I  mean,  on  this,  the  real  subject  of  the  suit — that  any 
moneys  or  goods  of  the  Plaintiffs  (moneys  or  goods  of  the 
Plaintiffs  in  their  own  right,  as  distinguished  from  their  right 
as  the  successors  de  facto  of  the  suppressed  government)  ever 
reached  the  hands  of  the  Defendant,  or  that  there  were  in  his 
hands  on  or  after  the  suppression  of  the  rebellion  any  public 
moneys  or  goods  which  had  become  vested  in  them,  there  is 
absolutely  not  a  title  of  evidence. 

The  Plaintiff's  case,  therefore,  .has  in  my  judgment  wholly 
failed  and  the  bill  must  be  dismissed,  and,  of  course,  dismissed 
with  costs. 


TERLINDEN  v.  AMES. 

SUPREME  COURT  OF  THE  UNITED  STATES.     1902. 
184  U.  S.  270. 

[Terlinden,  a  citizen  of  the  Kingdom  of  Prussia,  was  charged 
with  having  committed  in  that  country  in  the  year  1901  various 
acts  of  forgery  and  counterfeiting  and  was  arrested  in  Chicago 
on  complaint  of  the  German  consul,  who  alleged  that  he  was 
a  fugitive  from  justice  and  that  he  had  committed  offenses 
which  were  extraditable  under  the  treaty  made  in  1852  by 


TEELINDEN  v.  AMES.  93 

the  United  States  and  the  Kingdom  of  Prussia.  Terlinden  peti- 
tioned for  a  writ  of  habeas  corpus  on  the  ground  inter  alia 
that  the  treaty  between  the  United  States  and  Prussia  had  been 
terminated  by  the  formation  of  the  German  Empire  in  1871. 
The  District  Court  dismissed  the  petition  and  the  petitioner 
appealed.] 

MR.  CHIEF  JUSTICE  FULLER  .  .  .  delivered  the  opinion 
of  the  court.  .  .  . 

This  brings  us  to  the  real  question,  namely,  the  denial  of  the 
existence  of  a  treaty  of  extradition  between  the  United  States 
and  the  Kingdom  of  Prussia,  or  the  German  Empire.  In  these 
proceedings  the  application  was  made  by  the  official  representa- 
tive of  both  the  Empire  and  the  Kingdom  of  Prussia,  but  was 
based  on  the  extradition  treaty  of  1852.  The  contention  is  that, 
as  a  result  of  the  formation  of  the  German  Empire,  this  treaty 
had  been  terminated  by  operation  of  law. 

Treaties  are  of  different  kinds  and  terminable  in  different 
ways.  The  fifth  article  of  this  treaty  provided,  in  substance, 
that  it  should  continue  in  force  until  1858,  and  thereafter  until 
the  end  of  a  twelve  months'  notice  by  one  of  the  parties  of  the 
intention  to  terminate  it.  No  such  notice  has  ever  been  given, 
and  extradition  has  been  frequently  awarded  under  it  during 
the  entire  intervening  time. 

Undoubtedly  treaties  may  be  terminated  by  the  absorption  of 
Powers  into  other  Nationalities  and  the  loss  of  separate  exist- 
ence, as  in  the  case  of  Hanover  and  Nassau,  which  became  by 
conquest  incorporated  into  the  Kingdom  of  Prussia  in  1866. 
Cessation  of  independent  existence  rendered  the  execution  of 
treaties  impossible.  But  where  sovereignty  in  that  respect  is  not 
extinguished,  and  the  power  to  execute  remains  unimpaired,  out- 
standing treaties  cannot  be  regarded  as  avoided  because  of 
impossibility  of  performance. 

This  treaty  was  entered  into  by  His  Majesty  the  King  of 
Prussia  in  his  own  name  and  in  the  names  of  eighteen  other 
States  of  the  Germanic  Confederation,  including  the  Kingdom 
of  Saxony  and  the  free  city  of  Frankfort,  and  was  acceded  to 
by  six  other  States,  including  the  Kingdom  of  Wiirtemburg, 
and  the  free  Hanseatic  city  of  Bremen,  but  not  including  the 
Hanseatic  free  cities  of  Hamburg  and  Lubeck.  The  war  be- 
tween Prussia  and  Austria  in  1866  resulted  in  the  extinction 
of  the  Germanic  Confederation  and  the  absorption  of  Hanover. 


94  STATE  SUCCESSION. 

Hesse  Cassel,  Nassau  and  the  free  city  of  Frankfort,  by  Prussia. 

The  North  German  Union  was  then  created  under  the  prae 
sidium  of  the  Crown  of  Prussia,  and  our  minister  to  Berlin, 
George  Bancroft,  thereupon  recognized  officially  not  only  the 
Prussian  Parliament,  but  also  the  Parliament  of  the  North 
German  United  States,  and  the  collective  German  Customs  and 
Commerce  Union,  upon  the  ground  that  by  the  paramount 
constitution  of  the  North  German  United  States,  the  King  of 
Prussia,  to  which  he  was  accredited,  was  at  the  head  of  those 
several  organizations  or  institutions ;  and  his  action  was  entirely 
approved  by  this  Government.  Messages  and  Documents,  Dep. 
of  State,  1867-8,  Part  I,  p.  601;  Dip.  Correspondence,  Secre- 
tary Seward  to  Mr.  Bancroft,  Dec.  9,  1867. 

February  22,  1868,  a  treaty  relative  to  naturalization  was 
concluded  between  the  United  States  and  His  Majesty,  the  King 
of  Prussia,  on  behalf  of  the  North  German  Confederation,  the 
third  article  of  which  read  as  follows :  ' '  The  convention  for  the 
mutual  delivery  of  criminals,  fugitives  from  justice,  in  certain 
cases,  concluded  between  the  United  States  on  the  one  part 
and  Prussia  and  other  States  of  Germany  on  the  other  part,  the 
sixteenth  day  of  June,  one  thousand  eight  hundred  and  fifty- 
two,  is  hereby  extended  to  all  the  States  of  the  North  German 
Confederation."  15  Stat.  615.  This  recognized  the  treaty  as 
still  in  force,  and  brought  the  Republics  of  Lubeck  and  Ham- 
burg within  its  scope.  Treaties  were  also  made  in  that  year 
between  the  United  States  and  the  Kingdoms  of  Bavaria  and 
Wiirtemburg,  concerning  naturalization,  which  contained  the 
provision  that  the  previous  conventions  between  them  and  the 
United  States  in  respect  of  fugitives  from  justice  should  remain 
in  force  without  change. 

Then  came  the  adoption  of  the  Constitution  of  the  German 
Empire.  It  found  the  King  of  Prussia,  the  chief  executive 
of  the  North  German  Union,  endowed  with  power  to  carry  into 
effect  its  international  obligations,  and  those  of  his  kingdom, 
and  it  perpetuated  and  confirmed  that  situation.  The  official 
promulgation  of  that  Constitution  recited  that  it  was  adopted 
instead  of  the  Constitution  of  the  North  German  Union,  and  its 
preamble  declared  that  "His  Majesty  the  King  of  Prussia,  in 
the  name  of  the  North  German  Union,  his  Majesty  the  King 
of  Bavaria,  His  Majesty  the  King  of  Wiirtemburg,  His  High- 
ness the  Grand  Duke  of -Baden,  and  His  Royal  Highness  the 
Grand  Duke  of  Hesse  and  by  Rhine  for  those  parts  of  the 


TERLINDEN  v.  AMES.  95 

Grand  Duchy  of  Hesse  which  are  situated  south  of  the  Main, 
conclude  an  eternal  alliance  for  the  protection  of  the  territory 
of  the  Confederation,  and  of  the  laws  of  the  same,  as  well  as 
for  the  promotion  of  the  welfare  of  the  German  people."  As 
we  have  heretofore  seen,  the  laws  of  the  Empire  were  to  take 
precedence  of  those  of  the  individual  States,  and  it  was  vested 
with  the  power  of  general  legislation  in  respect  of  crimes. 

Article  11  read,  "The  King  of  Prussia  shall  be  the  president 
of  the  Confederation,  and  shall  have  the  title  of  German 
Emperor.  The  Emperor  shall  represent  the  Empire  among 
nations,  declare  war,  and  conclude  peace  in  the  name  of  the 
same;  enter  into  alliances  and  other  conventions  with  foreign 
countries,  accredit  ambassadors,  and  receive  them.  ...  So 
far  as  treaties  with  foreign  countries  refer  to  matters  which, 
according  to  Article  IV,  are  to  be  regulated  by  the  legislature 
of  the  Empire,  the  consent  of  the  Federal  Council  shall  be 
required  for  their  ratification,  and  the  approval  of  the  Diet 
shall  be  necessary  to  render  them  valid." 

It  is  contended  that  the  words  in  the.  preamble  translated 
"an  eternal  alliance"  should  read  "an  eternal  union,"  but  this 
is  not  material,  for  admitting  that  the  Constitution  created  a 
composite  State  instead  of  a  system  of  confederated  States,  and 
even  that  it  was  called  a  confederate  Empire  rather  to  save  the 
amour  propre  of  some  of  its  component  parts  than  otherwise, 
it  does  not  necessarily  follow  that  the  Kingdom  of  Prussia  lost 
its  identity  as  such,  or  that  treaties  theretofore  entered  into  by 
it  could  not  be  performed  either  in  the  name  of  its  King  or 
that  of  the  Emperor.  We  do  not  find  in  this  constitution  any 
provision  which  in  itself  operated  to  abrogate  existing  treaties 
or  to  affect  the  status  of  the  Kingdom  of  Prussia  in  that  regard. 
Nor  is  there  anything  in  the  record  to  indicate  that  outstanding 
treaty  obligations  have  been  disregarded  since  its  adoption.  So 
far  from  that  being  so,  those  obligations  have  been  faithfully 
observed. 

And  without  considering  whether  extinguished  treaties  can 
be  renewed  by  tacit  consent  under  our  Constitution,  we  think 
that  on  the  question  whether  this  treaty  has  ever  been  ter- 
minated, governmental  action  in  respect  to  it  must  be  regarded 
as  of  controlling  importance.  During  the  period  from  1871 
to  the  present  day,  extradition  from  this  country  to  Germany, 
and  from  Germany  to  this  country,  has  been  frequently  granted 
under  the  treaty,  which  has  thus  been  repeatedly  recognized  by 


96  STATE  SUCCESSION. 

both  governments  as  in  force.     Moore's  Report  on  Extradition 
with  Returns  of  all  Cases,  1890. 

In  1889,  in  response  to  a  request  for  information  on  inter- 
national extradition  as  practiced  Toy  the  German  Government, 
the  Imperial  Foreign  Office  transmitted  to  our  charge  at  Berlin 
a  memorial  on  the  subject,  in  the  note  accompanying  which  it 
was  said:  "The  questions  referred  to,  in  so  far  as  they  could 
not  be  uniformly  answered  for  all  the  confederated  German 
States,  have  been  answered  in  that  document  as  relating  to  the 
case  of  applications  for  extradition  addressed  to  the  Empire 
or  Prussia."  It  was  stated  in  the  memorial,  among  other 
things : 

"In  so  far  as  by  laws  and  treaties  of  the  Empire  relating 
to  the  extradition  of  criminals,  provisions  which  bind  all  the 
States  of  the  union  have  not  been  made,  those  States  are  not 
hindered  from  independently  regulating  extradition  by  agree- 
ments with  foreign  States,  or  by  laws  enacted  for  their  own 
territory. 

"Of  conventions,  some  of  an  earlier,  some  of  a  later  period, 
for  the  extradition  of  criminals,  entered  into  by  individual 
States  of  the  union  with  various  foreign  States,  there  exist 
a  number,  and  in  particular  such  with  France,  the  Netherlands, 
Austria-Hungary,  and  Russia.  With  the  United  States  of 
America,  also,  extradition  is  regulated  by  various  treaties,  as, 
besides  the  treaty  of  June  16,  1852,  which  applies  to  all  of  the 
States  of  the  former  North  German  Union,  and  also  to  Hesse, 
south  of  the  Main,  and  to  Wiirtemburg,  there  exist  separate 
treaties  with  Bavaria  and  Baden,  of  September  12,  1853,  and 
January  30,  1857,  respectively."  Moore's  Report,  93,  94. 

Thus  it  appears  that  the  German  Government  has  officially 
recognized,  and  continues  to  recognize,  the  treaty  of  June  16, 
1852,  as  still  in  force,  as  well  as  similar  treaties  with  other 
members  of  the  Empire,  so  far  as  the  latter  has  not  taken  spe- 
cific action  to  the  contrary  or  in  lieu  thereof.  And  see  Laband, 
Das  Staatsrecht  des  Deutsclien  Reiclies,  (1894),  122,  123,  124, 
142. 

It  is  out  of  the  question  that  a  citizen  of  one  of  the  German 
States,  charged  with  being  a  fugitive  from  its  justice,  should  be 
permitted  to  call  on  the  courts  of  this  country  to  adjudicate  the 
correctness  of  the  conclusions  of  the  Empire  as  to  its  powers  and 
the  powers  of  its  members,  and  especially  as  the  Executive  De- 


TERLINDEN  v.  AMES.  97 

partment  of  our  Government  has  accepted  these  conclusions  and 
proceeded  accordingly. 

The  same  is  true  as  respects  many  other  treaties  of  serious 
moment,  with  Prussia,  and  with  particular  States  of  the  Empire, 
and  it  would  be  singular,  indeed,  if  after  the  lapse  of  years  of 
performance  of  their  stipulations,  these  treaties  must  be  held 
to  have  terminated  because  of  the  inability  to  perform  during 
all  that  time  of  one  of  the  parties. 

In  the  notes  accompanying  the  State  Department's  compila- 
tion of  Treaties  and  Conventions  between  the  United  States  and 
other  Powers,  published  in  1889,  Mr.  J.  C.  Bancroft  Davis  treats 
of  the  subject  thus: 

"The  establishment  of  the  German  Empire  in  1871,  and  the 
complex  relations  of  its  component  parts  to  each  other  and  to 
the  Empire,  necessarily  give  rise  to  questions  as  to  the  treaties 
entered  into  with  the  North  German  Confederation  and  with 
many  of  the  States  composing  the  Empire.  It  cannot  be  said 
that  any  fixed  rules  have  been  established. 

"Where  a  State  has  lost  its  separate  existence,  as  in  the  case 
of  Hanover  and  Nassau,  no  questions  can  arise. 

"Where  no  new  treaty  has  been  negotiated  with  the  Empire, 
the  treaties  with  the  various  States  which  have  preserved  a 
separate  existence  have  been  resorted  to. 

"The  question  of  the  existence  of  the  extradition  treaty  with 
Bavaria  was  presented  to  the  United  States  District  Court,  on 
the  application  of  a  person  accused  of  forgery  committed  in 
Bavaria,  to  be  discharged  on  habeas  corpus,  who  was  in  custody 
after  the  issue  of  a  mandate,  at  the  request  of  the  minister  of 
Germany.  The  court  held  that  the  treaty  was  admitted  by  both 
governments  to  be  in  existence. 

"Such  a  question  is,  after  all,  purely  a  political  one." 

The  case  there  referred  to  is  that  of  In  re  Thomas,  12  Blatch. 
370,  in  which  the  continuance  of  the  extradition  treaty  with 
Bavaria  was  called  in  question.  .  .  . 

We  concur  in  the  view  that  the  question  whether  power 
remains  in  a  foreign  State  to  carry  out  its  treaty  obligations 
is  in  its  nature  political  and  not  judicial,  and  that  the  courts 
ought  not  to  interfere  with  the  conclusions  of  the  political  de- 
partment in  that  regard.  .  .  . 

The  District  Court  was  right,  and  its  final  order  is 

Affirmed. 


98  STATE  SUCCESSION. 

WEST  RAND  CENTRAL  GOLD  MINING  COMPANY, 
LIMITED,  v.  THE  KING. 

KING'S  BENCH  DIVISION  OF  THE  HIGH  COTJET  OF  JUSTICE 'OF  EKGLANU 

1905. 
Law  Reports  [1905]  2  K.  B.  391. 

[Petition  of  right  which  alleged  that  before  the  outbreak  of 
the  South  African  War,  gold,  the  produce  of  a  mine  in  the  South 
African  Republic  owned  by  the  suppliants,  had  been  seized  by 
officials  of  that  Republic,  which  gold  or  its  value,  under  the 
laws  of  the  Republic,  the  government  thereof  was  bound  to  re- 
turn. The  suppliants  contended  that  by  reason  of  the  conquest 
and  annexation  of  the  territories  of  the  Republic  by  Her  late 
Majesty,  Queen  Victoria,  the  obligation  of  the  government  there- 
of towards  the  suppliant  was  now  binding  upon  His  Majesty 
the  King.] 

LORD  ALVERSTONE,  C.  J.  In  this  case  the  Attorney-General, 
on  behalf  of  the  Crown,  demurred  to  a  petition  of  right  pre- 
sented in  the  month  of  June,  1904,  by  the  West  Rand  Central 
Gold  Mining  Company,  Limited.  .  .  . 

The  Attorney-General  for  the  Crown,  as  well  as  Lord  Robert 
Cecil  for  the  suppliants,  desired  that  we  should  deal  with  the 
case  as  if  any  necessary  amendment  had  been  made,  and  decide 
the  question  whether  all  the  contractual  obligations  of  a  State 
annexed  by  Great  Britain  upon  conquest  are  imposed  as  a 
matter  of  course,  and  in  default  of  express  reservations,  upon 
Great  Britain,  and  can  be  enforced  by  British  municipal  law 
against  the  Crown  in  the  only  way  known  to  British  municipal 
law,  that  is  by  a  petition  of  right.  We  have  no  hesitation  in 
answering  this  question  in  the  negative,  but,  inasmuch  as  it 
one  of  great  importance,  and  we  have  had  the  advantage  of 
hearing  very  able  argument  upon  both  sides,  we  think  it  right 
to  give  our  reasons  in  some  detail. 

Lord  Robert  Cecil  argued  that  all  contractual  obligations  in- 
curred by  a  conquered  State,  before  war  actually  breaks  out, 
pass  upon  annexation  to  the  conqueror,  no  matter  what  was 
their  nature,  character,  origin,  or  history.  .  .  .  His  main 
proposition  was  divided  into  three  heads.  First,  that,  by  inter- 
national law,  the  Sovereign  of  a  conquering  State  is  liable  for 
the  obligations  of  the  conquered;  secondly,  that  international 


WEST  EAND  &c.  CO.  v.  THE  KING.  99 

law  forms  part  of  the  law  of  England;  and,  thirdly,  that  rights 
and  obligations,  which  were  binding  upon  the  conquered  State, 
must  be  protected  and  can  be  enforced  by  the  municipal  Courts 
of  the  conquering  State. 

In  support  of  his  first  proposition,  Lord  Eobert  Cecil  cited 
passages  from  various  writers  on  international  law.  .  .  .  Be- 
fore, however,  dealing  with  the  specific  passages  in  the  writ- 
ings of  jurists  upon  which  the  suppliants  rely,  we  desire  to 
consider  the  proposition,  that  by  international  law  the  conquer- 
ing country  is  bound  to  fulfil  the  obligations  of  the  conquered, 
upon  principle;  and  upon  principle  we  think  it  cannot  be  sus- 
tained. When  making  peace  the  conquering  Sovereign  can 
make  any  conditions  he  thinks  fit  respecting  the  financial  obliga- 
tions of  the  conquered  country,  and  it  is  entirely  at  his  option 
to  what  extent  he  will  adopt  them.  It  is  a  case  in  which  the 
only  law  is  that  of  military  force.  This,  indeed,  was  not  dis- 
puted by  counsel  for  the  suppliants;  but  it  was  suggested  that 
although  the  Sovereign  when  making  peace  may  limit  the  obliga- 
tions to  be  taken  over,  if  he  does  not  do  so  they  are  all  taken 
over,  and  no  subsequent  limitation  can  be  put  upon  them. 
What  possible  reason  can  be  assigned  for  such  a  distinction? 
Much  inquiry  may  be  necessary  before  it  can  be  ascertained 
under  what  circumstances  the  liabilities  were  incurred,  and  what 
debts  should  in  foro  conscientiae  be  assumed.  There  must  also 
be  many  contractual  liabilities  of  the  conquered  State  of  the 
very  existence  of  which  the  superior  Power  can  know  nothing, 
and  as  to  which  persons  having  claims  upon  the  nation  about 
to  be  vanquished  would,  if  the  doctrine  contended  for  were 
correct,  have  every  temptation  to  concealment — others,  again, 
which  no  man  in  his  senses  would  think  of  taking  over.  A  case 
was  put  in  argument  which  very  well  might  occur.  A  country 
has  issued  obligations  to  such  an  amount  as  wholly  to  destroy 
the  national  credit,  and  the  war,  which  ends  in  annexation  of 
the  country  by  another  Power,  may  have  been  brought  about 
by  the  very  state  of  insolvency  to  which  the  conquered  country 
has  been  reduced  by  its  own  misconduct.  Can  any  valid  reason 
by  suggested  why  the  country  -which  has  made  war  and  suc- 
ceeded should  take  upon  itself  the  liability  to  pay  out  of  its  own 
resources  the  debts  of  the  insolvent  State,  and  what  difference 
can  it  make  that  in  the  instrument  of  annexation  or  cessation 
of  hostilities  matters  of  this  kind  are  not  provided  for?  We 
can  well  understand  that,  if  by  public  proclamation  or  by  con 


100  STATE  SUCCESSION. 

vention  the  conquering  country  has  promised  something  that 
is  inconsistent  with  the  repudiation  of  particular  liabilities, 
good  faith  should  prevent  such  repudiation.  We  can  see  no 
reason  at  all  why  silence  should  be  supposed  to  be  equivalent 
to  a  promise  of  universal  novation  of  existing  contracts  with 
the  Government  of  the  conquered  State.  It  was  suggested  that 
a  distinction  might  be  drawn  between  obligations  incurred  for 
the  purpose  of  waging  war  with  the  conquering  country  and 
those  incurred  for  general  State  expenditure.  What  municipal 
tribunal  could  determine,  according  to  the  laws  of  evidence  to 
be  observed  by  that  tribunal,  how  particular  sums  had  been 
expended,  whether  borrowed  before  or  during  the  war?  It  was 
this  and  cognate  difficulties  which  compelled  Lord  Robert  Cecil 
ultimately  to  concede  that  he  must  contend  that  the  obligation 
was  absolute  to  take  over  all  debts  and  contractual  obligations 
incurred  before  war  had  been  actually  declared. 

Turning  now  to  the  text-writers,  we  may  observe  that  the 
proposition  we  have  put  forward  that  the  conqueror  may  impose 
what  terms  he  thinks  fit  in  respect  of  the  obligations  of  the 
territory,  and  that  he  alone  must  be  the  judge  in  such  a  matter, 
is  clearly  recognized  by  Grotius:  see  "War  and  Peace,"  book 
iii.  chap.  8,  s.  4,  and  the  Notes  to  Barbeyrac's  edition  of  1724, 
vol.  ii.  p.  632.  For  the  assertion  that  a  line  is  to  be  drawn  at 
the  moment  of  annexation,  and  that  the  conquering  Sovereign 
has  no  right  at  any  later  stage  to  say  what  obligations  he  will 
or  will  not  assume,  we  venture  to  think  that  there  is  no  author- 
ity whatever.  A  doctrine  was  at  one  time  urged  by  some  of 
the  older  writers  that  to  the  extent  of  the  assets  taken  over  by 
the  conqueror  he  ought  to  satisfy  the  debts  of  the  conquered 
State.  It  is,  in  our  opinion,  a  mere  expression  of  the  ethical 
views  of  the  writers;  but  the  proposition  now  contended  for  is 
a  vast  extension  even  of  that  doctrine.  It  has  been  urged  that 
in  numerous  cases,  both  of  peace  and  of  cession  of  territories, 
special  provision  has  been  made  for  the  discharge  of  obligations 
by  the  country  accepting  the  cession  or  getting  the  upper  hand 
in  war;  but,  as  we  have  already  pointed  out,  conditions  the 
result  of  express  mutual  consent  between  two  nations  afford  no 
support  to  the  argument  that  obligations  not  expressly  provided 
for  are  to  follow  the  course,  by  no  means  uniform,  taken  by 
such  treaties.  See  as  to  this,  s.  27  of  the  4th  edition  of  Hall's 
Internationel  Law,  and  the  opinion  of  Lord  Clarendon  there 
cited.  Lord  Robert  Cecil  cited  a  passage  from  Mr.  Hall's  book, 


WEST  RAND  &c.  CO.  v.  THE  KING.  101 

4th  ed.  p.  105,  in  which  he  states  that  the  annexing  Power  is 
liable  for  the  whole  of  the  debts  of  the  State  annexed.  It  can- 
not, however,  be  intended  as  an  exhaustive  or  unqualified  state- 
ment of  the  practice  of  nations,  whatever  may  have  been  the 
opinion  of  the  writer  as  to  what  should  be  done  in  such  cases. 
It  is  not,  in  our  opinion,  directed  to  the  particular  subject  now 
under  discussion.  The  earlier  parts  of  the  same  chapter  con- 
tain passages  inconsistent  with  any  such  view.  We  would  call 
attention  particularly  to  s.  27  on  pp.  98  and  99  of  the  4th  edi- 
tion, where  the  question  as  to  the  extent  to  which  obligations 
do  not  pass  is  discussed,  and  the  passages  on  pp.  101  and  102, 
referring  to  the  discussion  between  England  and  the  United 
States  in  1854,  in  which  Lord  Clarendon's  contention  that  Mex- 
ico did  not  inherit  the  obligations  or  rights  of  Spain  is  approved 
of  by  Mr.  Hall.  In  the  same  way  the  passage  from  Halleck, 
s.  25  of  chap.  34  (Sir  Sherston  Baker's  edition  of  1878),  cited 
by  Lord  Robert  Cecil,  cannot  be  construed  as  meaning  to  lay 
down  any  such  general  proposition.  It  is  cited  from  a  chapter 
in  which  other  sections  contain  passages  inconsistent  with  the 
view  that  the  legal  obligation  to  fulfil  all  contracts  passed  to 
the  conquering  State.  The  particular  section  is  in  fact  directed 
to  the  obligations  of  the  conquering  or  annexing  State  upon  the 
rights  of  private  property  of  the  individual — the  point  which 
formed  the  subject  of  discussion  in  the  American  cases  upon 
which  the  suppliants  replied  and  with  which  we  shall  deal  later 
on.  The  passage  from  Wheaton  (Atlay's  ed.  p.  46,  s.  30)  shows 
that  the  writer  was  only  expressing  an  opinion  respecting  the 
duty  of  a  succeeding  State  with  regard  to  public  debts,  and, 
as  the  note  to  the  passage  shows,  it  is  really  based  upon  the  fact 
that  many  treaties  have  dealt  with  such  obligations  in  different 
ways.  We  have  already  pointed  out  how  little  value  particular 
stipulations  in  treaties  possess  as  evidence  of  that  which  may 
be  called  international  common  law.  -  We  have  not  had  the  op- 
portunity of  referring  to  the  edition  of  Calvo,  cited  by  Lord 
Robert  Cecil,  but  the  sections  of  the  8th  book  of  the  edition 
published  in  1872  contain  a  discussion  as  to  the  circumstances 
under  which  certain  obligations  should  be  undertaken  by  the 
conquering  State.  The  distinction  between  the  obligations  of 
the  successor  with  regard  to  the  private  property  of  individuals 
on  the  one  hand,  and  the  debts  of  the  conquered  State  on  the 
other,  is  clearly  pointed  out,  and  paragraphs  1005  and  1010  are 
quite  inconsistent  with  any  recognition  by  the  author  of  the 


102  STATE  SUCCESSION. 

proposition  contended  for  by  the  suppliants.  The  same  observa- 
tions apply  to  Heffter,  another  work  upon  which  reliance  was 
placed.  As  regards  Max  Huber's  work  on  State  Succession, 
published  in  1898,  there  is  no  doubt,  as  appears  from  Mr.  West- 
lake's  recent  book  on  international  law,  published  last  year, 
and  from  other  criticisms,  that  Huber  does  attempt  to  press 
the  duty  of  a  succeeding  or  conquering  State  to  recognize  the 
obligations  of  its  predecessor  to  a  greater  extent  than  previous 
writers  on  international  law,  but  the  extracts  cited  by  the  At- 
torney-General in  his  reply  and  other  passages  in  Huber's  book 
show  that  even  his  opinion  falls  far  short  of  the  proposition  for 
which  the  suppliants  contend.  But  whatever  may  be  the  view 
taken  of  the  opinions  of  these  writers,  they  are,  in  our  judgment, 
inconsistent  with  the  law  as  recognised  for  many  years  in  the 
English  Courts;  and  it  is  sufficient  for  us  to  cite  the  language 
of  Lord  Mansfield  in  Campbell  v.  Hall,  1  Cowp.  204,  209,  in  a 
passage  the  authority  of  which  has,  so  far  as  we  know,  never 
been  called  in  question:  "It  is  left  by  the  Constitution  to  the 
King's  authority  to  grant  or  refuse  a  capitulation.  ...  If 
he  receives  the  inhabitants  under  his  protection  and  grants  them 
their  property  he  has  a  power  to  fix  such  terms  and  conditions 
as  he  thinks  proper.  He  is  entrusted  with  making  the  treaty 
of  peace;  he  may  yield  up  the  conquest  or  retain  it  upon  what 
terms  he  pleases.  These  powers  no  man  ever  disputed,  neither 
has  it  hitherto  been  controverted  that  the  King  might  change 
part  or  the  whole  of  the  law  or  political  form  of  government 
of  a  conquered  dominion."  And  so,  much  earlier,  in  the  year 
1722  (2nd  Peere  "Williams,  p.  75),  it  is  said  by  the  Master  of 
the  Rolls  to  have  been  determined  by  the  Lords  of  the  Privy 
Council  that  "where  the  King  of  England  conquers  a  country 
it  is  a  different  consideration,  for  there  the  conqueror  by  saving 
the  lives  of  the  people  conquered  gains  a  right  and  property  in 
such  people,  in  consequence  of  which  he  may  impose  upon  them 
what  laws  he  pleases. ' '  References  were  made  to  many  cases  of 
cession  of  territory  not  produced  by  conquest,  and  tlve  frequent 
assumption  in  such  cases  of  the  liabilities  of  the  territory  ceded 
by  the  State  accepting  the  cession  was  referred  to.  They  may 
be  dismissed  -in  a  sentence.  The  considerations  which  applied 
to  peaceable  cession  raise  such  different  questions  from  those 
which  apply  to  conquest  that  it  would  answer  no  useful  purpose 
to  discuss  them  in  detail.  .  .  .  [Their  Lordships'  opinion  on 
Lord  Robert  Cecil's  second  proposition  is  printed  ante,  28.] 


EASTERN  &c.  TELEGRAPH  CO.  v.  U.  S.          103 

We  are  of  opinion  .  .  .  that  no  right  ...  is  disclosed 
by  the  petition  which  can  be  enforced  as  against  His  Majesty 
in  this  or  in  any  municipal  Court;  and  we  therefore  allow  the 
demurrer,  with  costs.  Judgment  for  the  Crown. 


THE    EASTERN    EXTENSION,    AUSTRALASIA    AND 

CHINA  TELEGRAPH  COMPANY  v.  THE  UNITED 

STATES. 

COURT  OP  CLAIMS  OF  THE  UNITED  STATES.    1912. 
48  Ct.  Cl.  33.      O^J^I' 

PEELE,  Ch.  J.  delivered  the  opinion  of  the  court :    .    .    . 

The  petition  avers  substantially  that  prior  to  the  War  with 
Spain  the  claimant  herein,  a  British  corporation,  had  by  sep- 
arate grants  and  concessions  entered  into  contracts  with  the 
Spanish  Government  for  the  construction  and  operation  at  its 
own  expense  of  certain  submarine  cables  and  telegraph  land 
lines  communicating  between  the  Island  of  Luzon  and  certain 
other  islands  in  the  Philippine  Archipelago  and  Hongkong, 
China,  for  which  the  Spanish  Government  agreed  to  pay  the 
claimant  an  annual  subsidy  of  £4,500,  payable  monthly  at 
Manila  by  the  chief  treasury  office  of  those  islands. 

That  prior  to  December,  1898,  the  Philippine  Archipelago, 
including  the  islands  referred  to,  was  under  the  control  and 
sovereignty  of  the  Government  of  Spain,  but  by  Article  III  of 
the  treaty  of  Paris  of  that  date  (30  Stat.  L.,  1754),  ceding  the 
Philippine  Archipelago  to  the  United  States,  the  control  and 
sovereignty  of  Spain  passed  to  the  control  and  sovereignty  of 
the  United  States,  who  thereupon  took  possession  of  said  islands 
and,  as  averred,  assumed  "jurisdiction  and  control  over  all 
property  and  property  rights  in  and  upon  said  Philippine 
Islands,  including  the  several  lines  of  submarine  cable  and  tele- 
graph land  lines  established,  constructed,  and  operated  by  the 
claimant,  and  availed  itself  of  all  the  benefits  and  advantages 
thereof,  using  said  lines  of  cable  and  telegraph  for  its  govern- 
mental and  other  purposes,  which  it  has  continued  to  do  ever 
since  and  still  continues  to  do"  without  the  payment  of  said 
annual  subsidy  of  £4,500  so  theretofore  agreed  to  be  paid  by 
the  Spanish  Government. 


104  STATE  SUCCESSION. 

By  Article  VIII  of  the  treaty  all  buildings,  wharves,  public 
highways,  forts,  and  all  public  property  which  by  law  belong  to 
the  public  domain,  and  as  such  to  the  Crown  of  Spain,  were 
ceded  or  relinquished  to  the  United  States,  for  which  it  is  under- 
stood $20,000,000  were  paid;  and  it  was  therein  provided  that 
the  relinquishment  or  cession  "can  not  in  any  respect  impair 
the  property  or  rights  which  by  law  belong  to  the  peaceful  pos- 
session of  property  of  all  kinds,  of  Provinces,  municipalities, 
public  or  private  establishments,  ecclesiastical  or  civic  bodies, 
or  any  other  associations  having  legal  capacity  to  acquire  and 
possess  property  in  the  aforesaid  territories  renounced  or  ceded, 
or  of  private  individuals,  of  whatsoever  nationality  such  indi- 
viduals may  be." 

Upon  investigation  it  will  be  found  that  the  foregoing  is  the 
usual  stipulation  in  treaties  and  is  in  effect  a  declaration  of  the 
rights  of  the  inhabitants  under  international  law.  (United 
States  v.  de  la  Arredondo,  6  Pet,  691,  712.)  .  .  . 

In  the  case  of  Cessna  v.  United  States  (169  U.  S.,  165,  186) 
the  court  observed:  "It  is  the  duty  of  a  nation  receiving  a 
cession  of  territory  to  respect  all  rights  of  property  as  those 
rights  were  recognized  by  the  nation  making  the  cession,  but 
it  is  no  part  of  its  duty  to  right  the  wrongs  which  the  grantor 
may  have  theretofore  committed." 

This,  however,  in  the  absence  of  a  stipulation  in  the  treaty 
therefor,  does  not  mean  that  the  United  States  assumed  the  per- 
sonal obligations  or  debts  of  the  Spanish  Government  to  indi- 
viduals or  corporations  unless  under  the  rules  of  international 
law  they  thereby  became  liable.  When  the  United  States  suc- 
ceeded to  the  sovereignty  of  Spain  over  the  islands  they  were 
under  no  more  obligation  to  continue  the  contracts  for  public 
or  private  service  of  individuals  or  corporations  than  they  were 
to  continue  in  office  officials  appointed  by  the  Spanish  Govern- 
ment. (Sanchez  v.  United  States,  42  C.  Cls,  458;  affirmed  216 
U.  S.,  167.) 

The  cables  so  constructed  under  the  grants  or  contracts  afore- 
said were  not  public  property  belonging  to  the  Crown  of  Spain, 
and  therefore  did  not  pass  to  the  United  States  by  the  treaty, 
but  were  the  private  property  of  the  claimant,  and,  so  far  as 
the  averments  of  the  petition  show,  were  so  recognized  by  the 
United  States.  .  .  . 

It  is  not  averred  that  the  Government  seized  or  took  physical 
possession  of  the  cables  or  that,  as  sovereign  over  the  islands, 


NOTE.  105 

it  did  other  than  assume  jurisdiction  and  control  over  all  prop- 
erty and  property  rights  therein,  including  the  submarine  cable 
and  telegraph  lines  of  the  claimant,  using  the  latter  for  its  gov- 
ernmental and  other  purposes,  for  which  it  made  compensation. 

There  is  no  averment  that  the  rights  of  the  claimant  in  and 
to  the  ownership  and  control  of  its  cable  and  telegraph  lines 
were  in  any  way  interrupted  or  interfered  with  by  the  officers 
of  the  Government  other  than  for  the  transmission  of  messages, 
for  which  compensation  was  made ;  and  if  they  were,  such  acts 
would  constitute  a  tort,  over  which  this  court  would  have  no 
jurisdiction.  .  .  . 

The  obligation  of  Spain  to  the  claimant  was  not  the  obliga- 
tion of  the  Philippine  Archipelago,  though  the  Spanish  Govern- 
ment saw  fit  to  pay  the  subsidy  out  of  the  revenues  of  the 
islands;  but  if  we  were  to  assume  that  it  was,  the  United  States, 
in  the  absence  of  treaty  stipulation,  such  as  is  referred  to  in 
Hall's  International  Law,  sec.  28,  p.  104,  would  not  be  liable 
therefor.  If  we  were  to  assume  that  the  obligations  of  Spain 
to  the  claimant  was  a  general  debt  of  the  Spanish  Government, 
it  would  be  a  personal  one,  as  laid  down  in  Hall's  International 
Law,  p.  99,  note ;  and  being  a  personal  obligation  would  not  in 
the  absence  of  a  treaty  stipulation  therefor,  attach  to  the  United 
States.  .  .  . 

The  court  is  without  jurisdiction  .  .  .  and  therefore  the 
demurrer  must  be  sustained,  .  .  .  and  the  petition  dismissed. 

NOTE. — The  authorities  are  in  much  confusion  as  to  the  effect  which 
a  transfer  of  jurisdiction  produces  upon  the  rights  and  obligations 
of  the  ceded  territory,  the  ceding  state  and  the  receiving  state.  This 
is  partly  because  the  facts  of  each  case  are  likely  to  present  some 
peculiar  features  which  make  it  difficult  to  deduce  a  general  rule. 
A  principle  which  is  often  invoked  was  well  expressed  by  General 
Botha  when  he  said  to  the  British  upon  the  surrender  of  the  Boer 
armies,  "Our  view  is  that  having  taken  the  assets  of  our  Government, 
you  may  fairly  be  expected  to  meet  their  liabilities,  not  in  part,  but 
in  full."  As  a  result  of  a  transfer  of  jurisdiction  a  state  may  be 
extinguished,  as  were  Texas  and  Hawaii  when  annexed  by  the  United 
States,  and  the  Boer  republics  when  annexed  by  Great  Britain,  and 
Korea  when  annexed  by  Japan,  and  Austria-Hungary  when  it  was 
dismembered  at  the  close  of  the  Great  War;  or  a  district  may  be 
transferred  the  revenues  of  which  have  been  pledged  to  the  payment 
of  a  particular  debt,  as  in  the  case  of  parts  of  Peru  annexed  by  Chili. 
If  public  debts  are  involved  they  may  have  been  contracted  by  a  gov- 
ernment which  the  new  sovereign  does  not  consider  to  have  been 
duly  authorized  thereto,  as  in  the  case  of  certain  debts  contracted  by 
the  Fiji  Islands  shortly  before  their  annexation  by  Great  Britain; 


106  STATE  SUCCESSION. 

or  the  debt  may  have  been  contracted  for  a  purpose  which  the  new 
sovereign  does  not  approve,  as  in  the  case  of  the  Cuban  debt,  much  of 
which  had  been  contracted  by  Spain  for  the  purpose  of  subjugating 
Cuba. 

The  changes  produced  by  the  Great  War  in  the  territorial  arrange- 
ments and  political  organization  of  Europe  have  greatly  enhanced 
the  importance  of  the  principal  of  state  succession.  Germany  has 
lost  much  territory  and  has  changed  its  form  of  government.  Russia 
likewise  has  changed  its  form  of  government  and  within  its  former 
boundaries  several  new  states,  Finland,  Esthonia,  Latvia  and  Lith- 
uania— sometimes  called  the  Russian  succession  states — have  been 
formed.  Similar  changes  have  been  made  in  the  Turkish  dominions. 
In  all  these  cases,  however,  the  political  entity  known  as  Germany, 
Russia  or  Turkey  still  remains  and  the  governmental  and  territorial 
changes  have  not  altered  the  state's  identity.  The  Austro-Hungarian 
monarchy  on  the  other  hand  has  disintegrated.  Portions  of  its 
dominions  have  been  ceded  to  Poland,  Roumania,  Jugo-Slavia  and 
Italy,  while  the  remainder  has  been  dismembered  and  organized  as 
independent  units  known  as  Austria,  Czechoslovakia,  Hungary  and 
the  Free  State  of  Fiume.  None  of  these  new  organizations  stands 
in  such  a  relation  to  the  old  Austria-Hungary  that  it  can  be  re- 
garded as  its  successor.  The  situation  is  analogous  to  that  which 
would  arise  if  the  American  Union  should  dissolve  and  each  of  the 
forty-eight  States  should  establish  itself  as  an  independent  nation. 
In  such  a  case  no  one  of  them  could  be  said  to  be  the  successor  of  the 
United  States.  In  connection  with  the  Austrian  succession  states 
questions  analogous  to  the  following  may  arise: 

1.  If  Austria-Hungary  in  1910  had  made  a  treaty  with  Spain  giving 
to  Spanish  merchant  vessels  certain  rights  in  the  harbor  of  Fiume, 
would   the  Free   State  of  Fiume  be   under   obligation  to  observe  the 
terms  of  the  treaty? 

2.  If  bonds  were  issued  by  Austria-Hungary  in  1910,  what  state,  if 
any,  is  now  bound  to  pay  them? 

3.  If  Austria-Hungary   in   1910  borrowed  money  for  the   construc- 
tion of  docks  in  Trieste,  which  now  belongs  to  Italy,  is  the  loan  an 
obligation  on  either  Trieste  or  Italy? 

4.  If  Austria-Hungary  in  1910  borrowed  money  for  the  construction 
of  war-vessels  and  pledged  the  revenue  from  state  property  in  Bohemia 
to  the  repayment  of  the  loan,  is  there  now  any  obligation  on  Czecho- 
slovakia? 

For  an  account  of  the  numerous  economic  problems  growing  out 
of  the  distintegration  of  Austria-Hungary,  see  "The  Pontorose  Confer- 
ence," The  American  Association  for  International  Conciliation,  Bul- 
letin No.  176  (July,  1922). 

The  temporary  military  occupant  of  a  country  does  not  succeed  to 
the  political  or  proprietary  rights  of  the  power  which  it  has  dispos- 
sessed, and  therefore  it  does  not  succeed  to  the  obligations  created 
by  that  power  with  reference  to  the  occupied  territory.  Replying  to 
an  inquiry  concerning  concessions  made  by  Spain  to  a  British  com- 
pany for  the  construction  of  cables  in  Cuba,  Attorney-General  Griggs 


NOTE.  107 

said,  March  17,  1899: 

American  control  of  Cuba  is  essentially,  and  merely,  that  of 
a  temporary  military  occupant.  Our  obligations,  therefore, 
are  those  which  arise  from  that  fact.  Benefits  to  the  island 
and  obligations  local  to  the  island,  so  far  as  becoming  obliga- 
tions of  the  United  States,  would  seem  from  their  very  nature 
obligations. of  the  island  or  its  people,  and  not  of  a  military 
occupant  entering  for  a  single  and  temporary  purpose.  .  ... 
Our  Government  is  ...  merely  an  intervening  power 
arranging  the  succession. 

Opinions  of  the  Attorney-General,  XXII,  385. 

For  general  discussions  of  the  principle  of  state  succession  see  Bor- 
chard,  sec.  83;  Huber,  Die  Staatensuccession;  Appleton,  Des  Effets  des 
Annexions  de  Territories  sur  les  Dettes  de  I'lStat  demembrti  ou  annexe; 
Westlake,  I,  74;  Keith,  The  Theory  of  State  Succession;  Sir  H.  Erie 
Richards,  "The  Liabilities  of  a  Conqueror,"  Law  Magazine  and  Re-? 
view,  XXVIII,  129;  Cobbett,  Cases  and  Opinions  I,  73;  Bonfils  (Fau- 
chille),  sec.  214. 

As  to  the  Fijian  debt,  see  Moore,  Digest,  I,  347.  As  to  the  Cuban 
debt  and  the  argument  for  and  against  its  assumption,  see  Moore, 
Digest,  I,  351.  As  to  the  debts  of  Hawaii,  see  22  Opinions  of  the  At- 
torney-General, 584.  For  the  effect  of  a  transfer  of  jurisdiction  on 
treaties,  see  Crandall,  425;  Moore,  Digest,  V,  341.  As  to  the  effect  of 
the  annexation  of  Algiers  by  France  on  treaties  between  Algiers  and 
the  United  States,  see  Mahoney  v.  United  States  (1869),  10  Wallace, 
62.  When  a  man  was  arrested  in  the  United  States  and  held  for 
extradition  to  Great  Britain  for  an  offense  committed  in  the  South 
African  Republic  before  its  annexation  by  Great  Britain,  it  was  held 
the  treaty  of  extradition  between  Great  Britain  and  the  United  States 
could  not  apply  to  offenses  committed  in  places  which  were  not  under 
British  jurisdiction  at  the  time  of  their  commission,  and  as  there 
had  been  no  extradition  treaty  between  the  United  States  and  the 
South  African  Republic,  the  prisoner  was  released,  In  re  Taylor 
(1902),  118  Fed.  196.  For  various  questions  arising  out  of  the  con- 
quest of  the  Boer  republics  by  Great  Britain,  see  Keith,  "Colonial 
Cases  Relating  to  the  Succession  of  States,"  Zeitschrift  fur  Volker- 
recht  und  Bundesstaatsrecht,  III,  618. 

On  the  question  as  to  whether  a  state  Is  bound  to  recognize  the 
contracts  and  concessions  made  by  its  predecessor  in  title,  see  Gidel, 
Des  Effets  de  VAnnexion  sur  les  Concessions;  Sayre,  "Change  of 
Sovereignty  and  Concessions,"  Am.  Jour.  Int.  Law-,  XII,  705;  Republic 
of  Peru  v.  Peruvian  Guano  Co.  (1887),  36  Ch.  D.  489;  Report  of  the 
Transvaal  Concession  Commission,  Blue  Book,  South  Africa,  June, 
1901,  parts  of  which  are  given  in  Moore,  Digest,  I,  411.  As  to  Spanish 
concessions  in  Cuba,  Porto  Rico,  and  the  Philippines,  see  Magoon, 
Reports,  and  the  opinions  of  Attorney-General  Griggs  in  22  Opinions 
of  the  Attorney-General,  384,  408,  520,  546,  551,  .654,  and  23  Ib.  181, 
195,  425,  451.  Some  of  these  may  also  be  found  in  Moore,  Digest,  I, 
390  seq.  As  to  the  effect  of  the  extinction  of  a  state  upon  corpora- 
tions formed  under  its  laws,  see  Pennant,  "The  International  Status 
of  Modern  Corporations,"  Law  Magazine  and  Review,  XXVIII,  161, 


CHAPTER  V. 
JURISDICTION. 

SECTION  1.    THE  TERRITORIAL  SOVEREIGNTY  OP  THE  STATE. 
CHAE  CHAN  PING  v.  UNITED  STATES. 

SUPBEME  COUBT   OF  THE   UNITED   STATES.      1889. 

130  U.  S.  581. 

[The  appellant,  a  subject  of  the  Emperor  of  China,  had  re- 
sided in  the  United  States  from  1875  to  1887,  when  he  went  to 
China,  having  in  his  possession  a  certificate  which  under  the 
treaties  and  statutes  then  in  force  entitled  him  to  return  to  the 
United  States.  Upon  his  arrival  in  San  Francisco  in  1888,  the 
Collector  of  the  Port  refused  to  allow  him  to  land  on  the  ground 
that  his  certificate  had  been  annulled  by  the  act  of  Congress  of 
October  1,  1888.  The  appellant  argued  that  the  act  was  invalid 
(1)  because  it  contravened  the  provisions  of  the  treaty  between 
the  United  States  and  China  and  (2)  because  it  violated  rights 
vested  in  citizens  of  China  by  earlier  statutes.  Only  so  much 
of  the  opinion  as  relates  to  the  second  point  is  here  given.] 

MR.  JUSTICE  FIELD  delivered  the  opinion  of  the  court.    .    .    . 

There  being  nothing  in  the  treaties  between  China  and  the 
United  States  to  impair  the  validity  of  the  act  of  Congress  of 
October  1,  1888,  was  it  on  any  other  ground  beyond  the  com- 
petency of  Congress  to  pass  it  ?  If  so,  it  must  be  because  it  was 
not  within  the  power  of  Congress  to  prohibit  Chinese  laborers 
who  had  at  the  time  departed  from  the  United  States,  or  should 
subsequently  depart,  from  returning  to  the  United  States. 
Those  laborers  are  not  citizens  of  the  United  States;  they  are 
aliens.  That  the  government  of  the  United  States  through  the 
action  of  the  legislative  department,  can  exclude  aliens  from  its 
territory  is  a  proposition  which  we  do  not  think  open  to  contro- 
versy. Jurisdiction  over  its  own  territory  to  that  extent  is  an 

108 


CHAE  CHAN  PING  v.  UNITED  STATES.          109 

incident  of  every  independent  nation.  It  is  a  part  of  its  in- 
dependence. If  it  could  not  exclude  aliens  it  would  be  to  that 
extent  subject  to  the  control  of  another  power.  As  said  by  this 
court  in  the  case  of  The  Exchange,  7  Cranch,  116,  136,  speak- 
ing by  Chief  Justice  Marshall:  "The  jurisdiction  of  the  nation 
within  its  own  territory  is  necessarily  exclusive  and  absolute. 
It  is  susceptible  of  no  limitation  not  imposed  by  itself.  Any 
restriction  upon  it,  deriving  validity  from  an  external  source, 
would  imply  a  diminution  of  its  sovereignty  to  the  extent  of 
the  restriction,  and  an  investment  of  that  sovereignty  to  the 
same  extent  in  that  power  which  could  impose  such  restriction. 
All  exceptions,  therefore,  to  the  full  and  complete  power  of  a 
nation  within  its  own  territories,  must  be  traced  up  to  the 
consent  of  the  nation  itself.  They  can  flow  from  no  other  legiti- 
mate source. ' ' 

While  under  our  Constitution  and  form  of  government  the 
great  mass  of  local  matters  is  controlled  by  local  authorities, 
the  United  States,  in  their  relation  to  foreign  countries  and 
their  subjects  or  citizens  are  one  nation,  invested  with  powers 
which  belong  to  independent  nations,  the  exercise  of  which  can 
be  invoked  for  the  maintenance  of  its  absolute  independence 
and  security  throughout  its  entire  territory.  The  powers  to 
declare  war,  make  treaties,  suppress  insurrection,  repel  invasion, 
regulate  foreign  commerce,  secure  republican  governments  to 
the  States,  and  admit  subjects  of  other  nations  to  citizenship, 
are  all  sovereign  powers,  restricted  in  their  exercise  only  by 
the  Constitution  itself  and  considerations  of  public  policy  and 
justice  which  control,  more  or  less,  the  conduct  of  all  civilized 
nations.  As  said  by  this  court  in  the  case  of  Cohens  v.  Virginia, 
6  Wheat.  264,  413,  speaking  by  the  same  great  Chief  Justice: 
"That  the  United  States  form,  for  many,  and  for  most  import- 
ant purposes,  a  single  nation,  has  not  yet  been  denied.  In  war, 
we  are  one  people.  In  making  peace  we  are  one  people.  In 
all  commercial  regulations,  we  are  one  and  the  same  people. 
In  many  other  respects,  the  American  people  are  one;  and  the 
government  which  is  alone  capable  of  controlling  and  managing 
their  interests  in  all  these  respects,  is  the  government  of  the 
Union.  It  is  their  government,  and  in  that  character  they  have 
no  other.  America  has  chosen  to  be  in  many  respects,  and  to 
many  purposes,  a  nation;  and  for  all  these  purposes  her  gov- 
ernment is  complete;  to  all  these  objects,  it  is  competent.  The 
people  have  declared,  that  in  the  exercise  of  all  powers  given  for 


110  JURISDICTION. 

these  objects,  it  is  supreme.  It  can  then  in  effecting  these  ob- 
jects legitimately  control  all  individuals  or  governments  within 
the  American  territory.  The  constitution  and  laws  of  a  State, 
so  far  as  they  are  repugnant  to  the  Constitution  and  laws  of 
the  United  States,  are  absolutely  void.  These  States  are  con- 
stituent parts  of  the  United  States.  They  are  members  of  one 
great  empire — for  some  purposes  sovereign,  for  some  purposes 
subordinate."  The  same  view  is  expressed  in  a  different  form 
by  Mr.  Justice  Bradley,  in  Knox  v.  Lee,  12  Wall.  457,  555,  where 
he  observes  that  "the  United  States  is  not  only  a  government, 
but  it  is  a  national  government,  and  the  only  government  in 
this  country  that  has  the  character  of  nationality.  It  is  in- 
vested with  power  over  all  the  foreign  relations  of  the  country, 
war,  peace  and  negotiations  and  intercourse  with  other  nations; 
all  of  which  are  forbidden  to  the  state  governments. "... 

The  control  of  local  matters  being  left  to  local  authorities, 
and  national  matters  being  entrusted  to  the  government  of  the 
Union,  the  problem  of  free  institutions  existing  over  a  widely 
extended  country,  having  different  climates  and  varied  interests, 
has  been  happily  solved.  For  local  interests  the  several  States 
of  the  Union  exist,  but  for  national  purposes,  embracing  our 
relations  with  foreign  nations,  we  are  but  one  people,  one  nation, 
one  power. 

To  preserve  its  independence,  and  give  security  against  for- 
eign aggression  and  encroachment,  is  the  highest  duty  of  every 
nation,  and  to  attain  these  ends  nearly  all  other  considerations 
are  to  be  subordinated.  It  matters  not  in  what  form  such  ag- 
gression and  encroachment  come,  whether  from  the  foreign  na- 
tion acting  in  its  national  character  or  from  vast  hordes  of  its 
people  crowding  in  upon  us.  The  government  possessing  the 
powers  which  are  to  be  exercised  for  protection  arid  security, 
is  clothed  with  authority  to  determine  the  occasion  on  which  the 
powers  shall  be  called  forth;  and  its  determination,  so  far  as 
the  subjects  affected  are  concerned,  are  necessarily  conclusive 
upon  all  its  departments  and  officers.  If,  therefore,  the  govern- 
ment of  the  United  States,  through  its  legislative  department, 
considers  the  presence  of  foreigners  of  a  different  race  in  this 
country,  who  will  not  assimilate  with  us,  to  be  dangerous  to  its 
peace  and  security,  their  exclusion  is  not  to  be  stayed  because 
at  the  time  there  are  no  actual  hostilities  with  the  nation  of 
which  the  foreigners  are  subjects.  The  existence  of  war  would 
render  the  necessity  of  the  proceeding  only  more  obvious  and 


CHAE  CHAN  PING  v.  UNITED  STATES.          Ill 

pressing.  The  same  necessity,  in  a  less  pressing  degree,  may 
arise  when  war  does  not  exist,  and  the  same  authority  which 
adjudges  the  necessity  in  one  case  must  also  determine  it  in  the 
other.  In  both  cases  its  determination  is  conclusive  upon  the 
judiciary.  If  the  government  of  the  country  of  which  the  for- 
eigners excluded  are  subjects  is  dissatisfied  with  this  action  it 
can  make  complaint  to  the  executive  head  of  our  government,  or 
resort  to  any  other  measure  which,  in  its  judgment,  its  interests 
or  dignity  may  demand ;  and  there  lies  its  only  remedy. 

The  power  of  the  government  to  exclude  foreigners  from  the 
country  whenever,  in  its  judgment,  the  public  interests  require 
such  exclusion,  has  been  asserted  in  repeated  instances,  and 
never  denied  by  the  executive  or  legislative  departments.  .  .  . 
In  a  dispatch  to  Mr.  Fay,  our  minister  to  Switzerland,  in  March, 
1856,  Mr.  Marcy,  Secretary  of  State  under  President  Pierce, 
writes:  "Every  society  possesses  the  undoubted  right  to  de- 
termine who  shall  compose  its  members,  and  it  is  exercised  by 
all  nations,  both  in  peace  and  war."  "It  may  always  be  ques- 
tionable whether  a  resort  to  this  power  is  warranted  by  the  cir- 
cumstances, or  what  department  of  the  government  is  em- 
powered to  exert  it;  but  there  can  be  no  doubt  that  it  is  pos- 
sessed by  all  nations,  and  that  each  may  decide  for  itself  when 
the  occasion  arises  demanding  its  exercise."  In  a  communica- 
tion in  September,  1869,  to  Mr.  Washburne,  our  minister  to 
France,  Mr.  Fish,  Secretary  of  State  under  President  Grant, 
uses  this  language:  "The  control  of  the  people  within  its  limits, 
and  the  right  to  expel  from  its  territory  persons  who  are  dan- 
gerous to  the  peace  of  the  State,  are  too  clearly  within  the  essen- 
tial attributes  of  sovereignty  to  be  seriously  contested. 
Strangers  visiting  or  sojourning  in  a  foreign  country  volun- 
tarily submit  themselves  to  its  laws  and  customs,  and  the  mu- 
nicipal laws  of  France,  authorizing  the  expulsion  of  strangers, 
are  not  of  such  recent  date,  nor  has  the  exercise  of  the  power 
by  the  government  of  France  been  so  infrequent,  that  sojourners 
within  her  territory  can  claim  surprise  when  the  power  is  put 
in  force."  In  a  commnuication  to  Mr.  Foster,  our  minister  to 
Mexico,  in  July,  1879,  Mr.  Evarts,  Secretary  of  State  under 
President  Hayes,  referring  to  the  power  vested  in  the  constitu- 
tion of  Mexico  to  expel  objectionable  foreigners,  says:  "The 
admission  that,  as  that  constitution  now  stands  and  is  inter- 
preted, foreigners  who  render  themselves  harmful  or  objection- 
able to  the  general  government  must  expect  to  be  liable  to  the 


112  JURISDICTION. 

exercise  of  the  power  adverted  to,  even  in  time  of  peace,  re- 
mains, and  no  good  reason  is  seen  for  departing  from  that 
conclusion  now.  But,  while  there  may  be  no  expedient  basis  on 
which  to  found  objection,  on  principle  and  in  advance  of  a 
special  case  thereunder,  to  the  constitutional  right  thus  asserted 
by  Mexico,  yet  the  manner  of  carrying  out  such  asserted  right 
may  be  highly  objectionable.  You  would  be  fully  justified  in 
making  earnest  remonstrances  should  a  citizen  of  the  United 
States  be  expelled  from  Mexican  territory  without  just  steps  to 
assure  the  grounds  of  such  expulsion,  and  in  bringing  the  fact 
to  the  immediate  knowledge  of  the  Department."  In  a  com- 
munication to  Mr.  "V'.  J.  Stillman,  under  date  of  August  3, 
1882,  Mr.  Frelinghu  -sen,  Secretary  of  State  under  President 
Arthur,  writes:  "T  'is  government  cannot  contest  the  right  of 
foreign  government'  to  exclude,  on  police  or  other  grounds, 
American  citizens  frwn  their  shores."  Wharton's  International 
Law  Digest,  §  206. 

The  exclusion  of  paupers,  criminals  and  persons  afflicted  with 
incurable  diseases,  for  which  statutes  have  been  passed,  is  only 
an  application  of  the  same  power  to  particular  classes  of  per- 
sons, whose  presence  is  deemed  injurious  or  a  source  of  danger 
to  the  country.  As  applied  to  them,  there  has  never  been  any 
question  as  to  the  power  to  exclude  them.  The  power  is  con- 
stantly exercised;  its  existence  is  involved  in  the  right  of  self- 
preservation.  .  .  . 

The  power  of  exclusion  of  foreigners  being  an  incident  of 
sovereignty  belonging  to  the  government  of  the  United  States, 
as  a  part  of  those  sovereign  powers  delegated  by  the  Constitu- 
tion, the  right  to  its  exercise  at  any  time  when,  in  the  judgment 
of  the  government,  the  interests  of  the  country  require  it,  can- 
not be  granted  away  or  restrained  on  behalf  of  any  one.  The 
powers  of  government  are  delegated  in  trust  to  the  United 
States,  and  are  incapable  of  transfer  to  any  other  parties.  They 
cannot  be  abandoned  or  surrendered.  Nor  can  their  exercise 
be  hampered,  when  needed  for  the  public  good,  by  any  consid- 
erations of  private  interest.  The  exercise  of  these  public  trusts 
is  not  the  subject  of  barter  or  contract.  Whatever  license,  there- 
fore, Chinese  laborers  may  have  obtained,  previous  to  the  act 
of  October  1,  1888,  to  return  to  the  United  States  after  their 
departure,  is  held  at  the  will  of  the  government,  revocable  at 
any  time,  at  its  pleasure.  Whether  a  proper  consideration  by 
our  government  of  its  previous  laws,  or  a  proper  respect  for  the 


DE  JAGER  v.  NATAL.  113 

nation  whose  subjects  are  affected  by  its  action,  ought  to  have 
qualified  its  inhibition  and  made  it  applicable  only  to  persons 
departing  from  the  country  after  the  passage  of  the  act,  are  not 
questions  for  judicial  determination.  If  there  be  any  just 
ground  of  complaint  on  the  part  of  China,  it  must  be  made  to 
the  political  department  of  our  government,  which  is  alone  com- 
petent to  act  upon  the  subject.  .  .  . 

Order  affirmed. 


LODEWYK  JOHANNES  DE  JAGER  v.  THE  ATTORNEY- 
GENERAL  OF  NATAL. 

JUDICIAL  COMMITTEE  OF  THE  PBIVY  COUNCIL  OF  GREAT  BRITAIN.     1907. 
Law   Reports    [1907]    A.   C.   326. 

This  was  a  petition  for  special  leave  to  appeal  from  a  judg- 
ment, reported  in  (1901)  Natal  L.  R.  p.  65,  of  a  special  Court 
constituted  by  Act  XIV  of  1900  of  the  Colony  of  Natal,  whereby 
on  March  14,  1901,  the  petitioner  was  adjudged  guilty  of  high 
treason  and  was  sentenced  to  five  years'  imprisonment  and  to 
pay  a  fine  of  £5000. 

It  alleged  that  the  petitioner  was  a  burgher  of  the  late  South 
African  Republic,  who  for  ten  years  and  at  the  date  of  the  out- 
break of  war  in  1899  was  peaceably  residing  in  Waschbank, 
in  Natal,  and  continued  to  do  so  after  the  battle  of  Elandslaagte 
on  October  21  of  that  year  while  the  Boer  forces  occupied  that 
part  of  Natal  in  which  Waschbank  is  situated  and  the  British 
forces  had  retired  to  Ladysmith,  whereby  he  lost  the  ^effective 
protection  of  Her  late  Majesty ;  that  the  Boers  administered  the 
government  and  remained  in  occupation  till  March,  1900;  that 
the  petitioner  was  thereupon  compellable  to  join,  and  did  join, 
the  Boer  forces,  aided  and  assisted  them  both  as  command- 
ant and  as  a  commissioner  and  justice  of  the  peace;  and  that 
after  judgment  as  aforesaid  he  had  undergone  imprisonment  and 
paid  the  fine  imposed.  .  .  . 

Sir  R.  Finlay,  K.  C.,  and  A.  R.  Kennedy,  for  the  petitioner, 
contended  that  the  petitioner  owed  only  a  local  and  temporary 
allegiance  to  Her  Majesty  whilst  he  was  a  resident  in  Natal  and 
was  actually  enjoying  Her  Majesty's  protection.  The  obligation 
ceased  to  be  binding  upon  him  when  he  was  deprived  of  that 


114  JURISDICTION. 

protection,  and  whilst,  owing  to  the  successful  military  occupa- 
tion of  the  territory  where  he  resided  by  the  Boer  forces,  he  was 
deprived  of  that  protection,  and  was  de  facto  under  the  govern- 
ment and  control  of  the  South  African  Republic.  Aid  and 
assistance  given  to  the  Boer  forces  by  the  petitioner  under  those 
circumstances  were  not  treasonable,  but  acts  which  he  was  legally 
compellable  to  perform.  It  was  not  alleged  against  him  that 
he  had  joined  the  invading  forces  prior  to  their  having  become 
established  in  possession  and  government  of  the  territory. 
Thereupon,  as  a  burgher  of  the  Republic,  he  was  compellable  to 
serve.  His  duty  of  allegiance  to  the  Queen  had  ceased,  and  his 
acts  of  service  to  his  own  Government  were  not  treasonable  as 
alleged.  Reference  was  made  to  Coke's  3rd  Inst.  p.  4;  Hale's 
Pleas  of  the  Crown,  vol.  i,  p.  94;  Foster's  Crown  Cases,  2nd  ed. 
(1776),  1st  discourse,  s.  2,  3rd  ed.  p.  185;  2  Halleck's  Inter- 
national Law,  3rd  ed.  p.  450.  .  .  . 

LORD  LOREBURN,  L.  C.  The  petitioner  Lodewyk  Johannes  De 
Jager  was  adjudged  guilty  of  high  treason  by  the  special  Court 
constituted  by  Act  No.  XIV.  of  1900  of  the  Colony  of  Natal,  and 
now  seeks  special  leave  to  appeal  to  His  Majesty  in  Council  from 
that  judgment  and  the  sentence  which  followed.  The  circum- 
stances and  the  questions  of  law  raised  are  fully  set  out  in  the 
petition  and  need  not  be  repeated  here.  Their  Lordships  have 
not  to  consider  any  facts  or  feature  of  this  case  except  the  points 
of  law  upon  which  Sir  Robert  Finlay  insisted. 

It  is  old  law  that  an  alien  resident  within  British  territory 
owes  allegiance  to  the  Crown,  and  may  be  indicted  for  high 
treason,  though  not  a  subject.  Some  authorities  affirm  that  this 
duty  and  liability  arise  from  the  fact  that  while  in  British  terri- 
tory he  receives  the  King's  protection.  Hence  Sir  R.  Finlay 
argued  that  when  the  protection  ceased  its  counterpart  ceased 
also,  and  that  as  the  British  forces  evacuated  Waschbank  on 
October  21,  1899,  the  petitioner  was  lawfully  entitled  to  assist 
the  invaders  on  and  after  October  24  without  incurring  the 
penalty  of  high  treason. 

Their  Lordships  are  of  opinion  that  there  is  no  ground  for 
this  contention.  The  protection  of  a  State  does  not  cease  merely 
because  the  State  forces,  for  strategical  or  other  reasons,  are 
temporarily  withdrawn,  so  that  the  enemy  for  the  time  exercises 
the  rights  of  an  army  in  occupation.  On  the  contrary,  when 
such  territory  reverts  to  the  control  of  its  rightful  Sovereign, 
wrongs  done  during  the  foreign  occupation  are  cognizable  by 


DE  JAGER  v.  NATAL.  115 

the  ordinary  Courts.  The  protection  of  the  Sovereign  has  not 
ceased.  It  is  continuous,  though  the  actual  redress  of  what  has 
been  done  amiss  may  be  necessarily  postponed  until  the  enemy 
forces  have  been  expelled.  Their  Lordships  consider  that  the 
duty  of  a  resident  alien  is  so  to  act  that  the  Crown  shall  not  be 
harmed  by  reason  of  its  having  admitted  him  as  a  resident. 
He  is  not  to  take  advantage  of  the  hospitality  extended  to  him 
against  the  Sovereign  who  extended  it.  In  modern  times  great 
numbers  of  aliens  reside  in  this  and  in  most  other  countries,  and 
in  modern  usage  it  is  regarded  as  a  hardship  if  they  are  com- 
pelled to  quit,  as  they  rarely  are,  even  in  the  event  of  war  be- 
tween their  own  Sovereign  and  the  country  where  they  so  reside. 
It  would  be  intolerable,  and  must  inevitably  end  in  a  restriction 
of  the  international  facilities  now  universally  granted,  if,  as 
soon  as  an  enemy  made  good  his  military  occupation  of  a  par- 
ticular district,  those  who  had  till  then  lived  there  peacefully  as 
aliens  could  with  impunity  take  up  arms  for  the  invaders.  A 
small  invading  force  might  thus  be  swollen  into  a  considerable 
army,  while  the  risks  of  transport  (which  in  the  case  of  over- 
sea expeditions  are  the  main  risks  of  invasion)  would  be  en- 
tirely evaded  by  those  who,  instead  of  embarking  from  their 
own  country,  awaited  the  expedition  under  the  protection  of 
the  country  against  which  it  was  directed.  These  considerations 
would  not  justify  a  British  Court  in  deciding  any  case  contrary 
to  the  law,  but  they  offer  an  illustration  of  consequences  which 
would  follow  if  the  law  were  as  the  petitioner  maintains. 
There  is  no  authority  which  compels  their  Lordships  to  arrive  at 
so  strange  a  conclusion.  The  questions  raised  are,  no  doubt, 
of  general  importance,  but  their  Lordships,  after  hearing  the 
arguments  of  counsel  in  support  of  the  petition,  do  not  consider 
the  case  to  be  attended  with  doubt,  and  they  will  therefore  hum- 
bly advise  His  Majesty  to  dismiss  this  petition.  .  .  . 


116  JURISDICTION. 

AMERICAN    BANANA    COMPANY    v.    UNITED    FRUIT 

COMPANY. 

i 

SUPREME  COUBT  OF  THE  UNITED  STATES.    1909. 

213  U.  S.  347. 
Error  to  the  Circuit  Court  of  Appeals  for  the  Second  Circuit. 

MR.  JUSTICE  HOLMES  delivered  the  opinion  of  the  court. 

This  is  an  action  brought  to  recover  threefold  damages  under 
the  Act  to  Protect  Trade  against  Monopolies.  July  2,  1890,  c. 
647,  Sec.  7.  26  Stat.  209,  210.  .  .  . 

The  allegations  of  the  complaint  may  be  summed  up  as 
follows:  The  plaintiff  is  an  Alabama  corporation,  organized 
in  1904.  The  defendant  is  a  New  Jersey  corporation,  organized 
in  1899.  Long  before  the  plaintiff  was  formed,  the  defendant, 
with  intent  to  prevent  competition  and  to  control  and  monop- 
olize the  banana  trade,  bought  the  property  and  business  of 
several  of  its  previous  competitors,  with  provision  against  their 
resuming  the  trade,  made  contracts  with  others,  including  a 
majority  of  the  most  important,  regulating  the  quantity  to 
be  purchased  and  the  price  to  be  paid,  and  acquired  a  control- 
ling amount  of  stock  in  still  others.  For  the  same  purpose  it 
organized  a  selling  company,  of  which  it  held  the  stock,  that 
by  agreement  sold  at  fixed  prices  all  the  bananas  of  the  com- 
bining parties.  By  this  and  other  means  it  did  monopolize  and 
restrain  the  trade  and  maintained  unreasonable  prices.  The 
defendant  being  in  this  ominous  attitude,  one  McConnell  in  1903 
started  a  banana  plantation  in  Panama,  then  part  of  the  United 
States  of  Colombia,  and  began  to  build  a  railway  (which  would 
afford  his  only  means  of  export),  both  in  accordance  with  the 
laws  of  the  United  States  of  Colombia.  He  was  notified  by  the 
defendant  that  he  must  either  combine  or  stop.  Two  months 
later,  it  is  believed  at  the  defendant's  instigation,  the  governor 
of  Panama  recommended  to  his  national  government  that  Costa 
Rica  be  allowed  to  administer  the  territory  through  which  the 
railroad  was  to  run,  and  this  although  that  territory  had  been 
awarded  to  Colombia  under  an  arbitration  agreed  to  by  treaty. 
The  defendant,  and  afterwards,  in  September,  the  government 
of  Costa  Rica,  it  is  believed  by  the  inducement  of  the  defendant, 
interfered  with  McConnell.  In  November,  1903,  Panama  re- 
volted and  became  an  independent  republic,  declaring  its  bound- 


AMERICAN  BANANA  CO.  v.  UNITED  FRUIT  CO.  117 

ary  to  be  that  settled  by  the  award.  In  June,  1904,  the  plain- 
tiff bought  out  McConnell  and  went  on  with  the  work,  as  it  had 
a  right  to  do  under  the  laws  of  Panama.  But  in  July,  Costa 
Rican  soldiers  and  officials,  instigated  by  the  defendant,  seized 
a  part  of  the  plantation  and  a  cargo  of  supplies  and  have  held 
them  ever  since,  and  stopped  the  construction  and  operation  of 
the  plantation  and  railway.  In  August  one  Astua,  by  ex  parte 
proceedings,  got  a  judgment  from  a  Costa  Rican  court,  declar- 
ing the  plantation  to  be  his,  although,  it  is  alleged,  the  proceed- 
ings were  not  within  the  jurisdiction  of  Costa  Rica,  and  were 
contrary  to  its  laws  and  void.  Agents  of  the  defendants  then 
bought  the  lands  from  Astua.  The  plaintiff  has  tried  to  induce 
the  government  of  Costa  Rica  to  withdraw  its  soldiers  and  also 
has  tried  to  persuade  the  United  States  to  interfere,  but  has 
been  thwarted  in  both  by  the  defendant  and  has  failed.  The 
government  of  Costa  Rica  remained  in  possession  down  to  the 
bringing  of  the  suit. 

As  a  result  of  the  defendant's  acts  the  plaintiff  has  been 
deprived  of  the  use  of  the  plantation,  and  the  railway,  the  plan- 
tation and  supplies  have  been  injured.  The  defendant  also,  by 
outbidding,  has  driven  purchasers  out  of  the  market  and  has 
compelled  producers  to  come  to  its  terms,  and  it  has  prevented 
the  plaintiff  from  buying  for  export  and  sale.  This  is  the  sub- 
stantial damage  alleged.  There  is  thrown  in  a  further  allega- 
tion that  the  defendant  has  " sought  to  injure"  the  plaintiff's 
business  by  offering  positions  to  its  employes  and  by  discharging 
and  threatening  to  discharge  persons  in  its  own  employ  who 
were  stockholders  of  the  plaintiff.  But  no  particular  point  is 
made  of  this.  It  is  contended,  however,  that  even  if  the  main 
argument  fails  and  the  defendant  is  held  not  to  be  answerable 
for  acts  depending  on  the  cooperation  of  the  government  of 
Costa  Rica  for  their  effect,  a  wrongful  conspiracy  resulting  in 
driving  the  plaintiff  out  of  business  is  to  be  gathered  from  the 
complaint  and  that  it  was  entitled  to  go  to  trial  upon  that. 

It  is  obvious  that,  however  stated,  the  plaintiff's  case  depends 
on  several  rather  startling  propositions.  In  the  first  place  the 
acts  causing  the  damage  were  done,  so  far  as  appears,  outside 
the  jurisdiction  of  the  United  States  and  within  that  of  other 
states.  It  is  surprising  to  hear  it  argued  that  they  were  gov- 
erned by  the  act  of  Congress. 

No  doubt  in  regions  subject  to  no  sovereign,  like  the  high 
seas,  or  to  no  law  that  civilized  countries  would  recognize  as 


118  JURISDICTION. 

adequate,  such  countries  may  treat  some  relations  between  their 
citizens  as  governed  by  their  own  law,  and  keep  to  some  extent 
the  old  notion  of  personal  sovereignty  alive.  See  The  Hamilton, 
207  U.  S.  398,  403 ;  Hart  v.  Gumpach,  L.  R.  4  P.  C.  439,  463, 
464;  British  South  Africa  Co.  v.  Companhia  de  Mozambique 
[1893],  A.  C.  602.  They  go  further,  at  times,  and  declare  that 
they  will  punish  any  one,  subject  or  not,  who  shall  do  certain 
things,  if  they  can  catch  him,  as  in  the  case  of  pirates  on  the 
high  seas.  In  cases  immediately  affecting  national  interests  they 
may  go  further  still  and  may  make,  and,  if  they  get  the  chance, 
execute  similar  threats  as  to  acts  done  within  another  recog- 
nized jurisdiction.  An  illustration  from  our  statutes  is  found 
with  regard  to  criminal  correspondence  with  foreign  govern- 
ments. Rev.  Stat.,  Sec.  5335.  See  further  Commonwealth  v. 
Macloon,  101  Massachusetts,  1 ;  The  Sussex  Peerage,  11  Cl.  & 
Fin.  85,  146.  And  the  notion  that  English  statutes  bind  British 
subjects  everywhere  has  found  expression  in  modern  times  and 
has  had  some  startling  applications.  Rex  v.  Sawyer,  2  C.  &  K. 
101 ;  The  Zollverein,  Swabey,  96,  98.  But  the  genera!  and  al- 
most universal  rule  is  that  the  character  of  an  act  as  lawful 
or  unlawful  must  be  determined  wholly  by  the  law  of  the  coun- 
try where  the  act  is  done.  Slater  v.  Mexican  National  R.  R.  Co., 
194  U.  S.  120,  126.  This  principle  was  carried  to  an  extreme 
in  Milliken  v.  Pratt,  125  Massachusetts,  374.  For  another  juris- 
diction, if  it  should  happen  to  lay  hold  of  the  actor,  to  treat  him 
according  to  its  own  notions  rather  than  those  of  the  place 
where  he  did  the  acts,  not  only  would  be  unjust,  but  would  be 
an  interference  with  the  authority  of  another  sovereign,  con- 
trary to  the  comity  of  nations,  which  the  other  state  concerned 
justly  might  resent.  Phillips  v.  Eyre,  L.  R.  4  Q.  B.  225,  239; 
L.  R.  6  Q.  B.  1,  28;  Dicey,  Conflict  of  Laws  (2d  ed.),  647.  See 
also  Appendix,  724,  726,  Note  2,  ibid. 

Law  is  a  statement  of  the  circumstances  in  which  the  public 
force  will  be  brought  to  bear  upon  men  through  the  courts. 
But  the  word  commonly  is  confined  to  such  prophecies  or  threats 
when  addressed  to  persons  living  within  the  power  of  the  courts. 
A  threat  that  depends  upon  the  choice  of  the  party  affected  to 
bring  himself  within  that  power  hardly  would  be  called  law  in 
the  ordinary  sense.  "We  do  not  speak  of  blockade  running  by 
neutrals  as  unlawful.  And  the  usages  of  speech  correspond  to 
the  limit  of  the  attempts  of  the  lawmaker,  except  in  extra- 
ordinary cases.  It  is  true  that  domestic  corporations  remain 


CASDAGLI  v.  CASDAGLI.  119 

always  within  the  power  of  the  domestic  law,  but  in  the  present 
case,  at  least,  there  is  no  ground  for  distinguishing  between  cor- 
porations and  men. 

The  foregoing  considerations  would  lead  in  case  of  doubt  to  a 
construction  of  any  statute  as  intended  to  be  confined  in  its 
operation  and  effect  to  the  territorial  limits  over  which  the  law- 
maker has  general  and  legitimate  power.  "All  legislation  is 
prima  facie  territorial."  Ex  parte  Blain,  In  re  Sawers,  12  Ch. 
Div.  522,  528;  State  v.  Carter,  27  N.  J.  (3  Butcher)  499; 
People  v.  Merrill,  2  Parker,  Grim.  Rep.  590,  596.  Words  having 
universal  scope,  such  as  "Every  contract  in  restraint  of  trade," 
"Every  person  who  shall  monopolize,"  etc.,  will  be  taken  as  a 
matter  of  course  to  mean  only  every  one  subject  to  such  legisla- 
tion, not  all  that  the  legislator  subsequently  may  be  able  to 
catch.  In  the  case  of  the  present  statute  the  improbability  of 
the  United  States  attempting  to  make  acts  done  in  Panama  or 
Costa  Rica  criminal  is  obvious,  yet  the  law  begins  by  making 
criminal  the  acts  for  which  it  gives  a  right  to  sue.  We  think 
it  entirely  plain  that  what  the  defendant  did  in  Panama  or 
Costa  Rica  is  not  within  the  scope  of  the  statute  so  far  as  the 
present  suit  is  concerned.  Other  objections  of  a  serious  nature 
are  urged  but  need  not  be  discussed.  .  .  . 

Judgment  affirmed. 


CASDAGLI,  Appellant  v.  CASDAGLI,  Respondent. 

HOUSE  OF  LORDS  OF  GREAT  BRITAIN,  1918. 
Law  Reports  [1919]  A.  C.  145. 

Appeal  from  an  order  of  the  Court  of  Appeal,  [1918],  P.  89, 
affirming  a  judgment  of  Horridge,  J. 

In  March,  1916,  the  respondent  presented  a  petition  for  dis- 
solution of  her  marriage  with  her  husband,  the  appellant.  .  .  . 

HORRIDGE,  J.  found  that  the  appellant  had  voluntarily  fixed 
his  residence  in  Egypt  with  an  intention  of  remaining  there 
for  an  unlimited  time,  but  held,  upon  the  authority  of  In  re 
Tootal's  Trusts,  23  Ch.  D.  532,  and  Abd-ul-Messih  v.  Farra,  13 
App.  Cas.  431,  that  the  appellant's  residence  in  Egypt  was 
ineffectual  to  create  an  Egyptian  domicile  of  choice,  and  that 
his  domicile  of  origin  remained.  He  therefore  dismissed  the 
act  on  petition. 


120  JURISDICTION. 

The  Court  of  Appeal,  by  a  majority  (Swinfen  Eady  and 
Harrington  L.  JJ.,  Scutton  L.  J.  dissenting),  affirmed  this  de- 
cision. .  .  . 

[The  facts  are  stated  in  the  opinion  of  the  Lord  Chancellor.] 
LORD  FINLAY  L.  C.  My  Lords,  this  appeal  arises  out  of  pro- 
ceedings for  divorce  taken  in  the  Divorce  Court  in  England 
by  the  wife,  the  respondent  in  this  appeal,  against  her  husband, 
the  appellant.  The  husband,  by  Act  on  Petition,  alleged  that 
he  had  acquired  a  domicil  of  choice  in  Egypt,  that  there  was 
no  English  domicil,  and  that  the  English  Court  had  no  juris- 
diction to  entertain  a  suit  against  him  for  dissolution  of  mar- 
riage. The  wife,  by  her  answer,  set  up  that  the  husband  had 
never  abandoned  his  domicil  of  origin,  which  was  English,  and 
that  the  Court,  therefore,  had  jurisdiction.  Evidence  was  taken 
orally  and  upon  affidavit.  The  case  was  tried  before  Horridge 
J.  He  held  that  he  was  bound  by  authority  to  decide  that  a 
British  subject,  registered  as  such  at  the  British  Consulate, 
could  not,  in  point  of  law,  acquire  a  domicil  in  Egypt,  and  his 
decision  was  affirmed  by  the  majority  of  the  Court  of  Appeal 
(Swinfen  Eady  L.  J.  and  Warrington  L.  J.),  while  Scrutton 
L.  J.  dissented,  holding  that  there  was  no  rule  of  law  against 
the  acquisition  of  a  domicil  in  Egypt  by  a  British  subject. 
From  the  decision  of  the  Court  of  Appeal  the  present  appeal 
is  now  brought  to  your  Lordship's  House.  The  facts  are  not 
in  dispute,  and  the  only  question  is  whether  it  is,  in  point  of 
law,  impossible  for  a  registered  British  subject  to  acquire  a 
domicil  in  Egypt.  It  was  contended  for  the  respondent  that 
this  point  had  been  decided  in  her  favour  by  Chitty  J.  in  In 
re  Tootal's  Trusts,  23  Ch.  D.  532,  and  by  the  Judicial  Commit- 
tee in  Abd-ul-Messih  v.  Farra,  13  App.  Gas.  431,  and  that  these 
cases  had  been  correctly  decided  and  ought  to  be  followed  by 
your  Lordships'  House. 

It  is  admitted  that  the  appellant  is,  and  always  has  been, 
a  British  subject.  He  was  born  in  England  in  1872,  his  father 
being  a  naturalized  British  subject  residing  in  England,  and 
carrying  on  business  there  and  in  Egypt.  The  appellant  was 
taken  to  Egypt  in  1879  on  account  of  his  health,  and  remained 
there  until  1882,  when  he  returned  to  England.  He  was  edu- 
cated in  England  and  in  France,  and  returned  to  Egypt  in  1895 
when  he  was  23  years  of  age.  He  resided  in  Alexandria  from 
1895  to  1900,  and  was  engaged  in  his  father's  business  there. 
In  1900  he  went  to  Cairo  to  manage  the  business  in  Cairo,  and 


CASDAQLI  v.  CASDAGL1. 

has  resided  in  Cairo  from  that  time  until  the  present.  He  al- 
ways has  been,  and  is,  a  member  of  the  Greek  Orthodox  Church, 
and  the  respondent,  who  was  born  in  Egpyt,  is  a  member  of  the 
same  Church.  They  were  married  according  to  the  rites  of 
their  Church  in  Alexandria  on  July  1,  1905,  and  on  the  5th 
of  the  same  month  the  civil  marriage  took  place  at  the  British 
Consulate  at  Alexandria.  The  appellant  was  taken  into  part- 
nership by  his  father,  together  with  the  appellant's  four 
brothers,  in  1910.  The  father  died  in  1911,  and  since  his  death 
the  appellant  has  carried  on  the  Egyptian  branch  of  the  busi- 
ness along  with  two  of  his  brothers.  The  appellant  has  been, 
and  is,  registered  as  a  British  subject  at  the  British  Consulate 
at  Cairo.  Horridge  J.  found  that  the  appellant  had  fixed  his 
residence  in  Egypt  with  the  intention  of  residing  there  for  an 
unlimited  time.  He  decided  against  the  husband  on  the  ques- 
tion of  jurisdiction,  not  at  all  upon  the  facts  as  to  residence,  but 
simply  on  the  ground  that,  in  point  of  law,  it  was  impossible 
for  a  British  subject  to  acquire  a  domicil  in  Egypt  on  account 
of  the  extra-territorial  rights  which  British  subjects  there  en- 
joy. The  same  view  was  taken  by  the  majority  of  the  Court 
of  Appeal. 

Until  December,  1914,  Egypt  was,  in  the  contemplation  of 
law,  a  part  of  the  Ottoman  dominions;  but  in  that  month  the 
suzerainty  of  the  Sultan  of  Turkey  was  terminated,  and  Egypt 
became  a  Sultanate  under  the  protection  of  Great  Britain.  The 
capitulations  which  had  long  governed  the  position  in  Egypt 
of  the  subjects  of  Great  Britain  and  of  other  European  Powers 
remain  in  force  at  the  present  time.  These  capitulations  are  a 
series  of  treaties  with  the  several  European  Powers.  The 
capitulations  between  Great  Britain  and  the  Sultan  of  Turkey 
were  confirmed  by  the  Treaty  of  the  Dardanelles  in  1809,  and 
by  s.  16  of  that  Treaty  it  was  provided  that  disputes  amongst 
the  English  themselves  should  be  decided  by  their  own  mag- 
istrate or  consul  according  to  their  customs,  without  interfer- 
ence by  the  Turkish  authorities.  Consular  Courts  were  accord- 
ingly established  for  the  decision  of  such  disputes  between 
English  subjects,  not  relating  to  land,  and  such  Courts  are  now 
regulated  in  Egypt  by  the  Egypt  Order  in  Council  of  His 
Majesty  dated  February  16,  1915.  By  that  Order  the  jurisdic- 
tion of  the  Consular  Courts,  which  had  been  established  by  His 
Majesty  in  Egypt  under  the  Capitulations,  was  continued. 
Those  Courts  deal  with  disputes,  not  relating  to  land,  the  parties 


122  JURISDICTION. 

to  which  are  all  British  subjects,  and  all  questions  affecting  the 
personal  status  of  a  British  subject  must  be  determined  in  the 
Consular  Courts.  There  are  also  in  Egypt  what  are  termed 
Mixed  Courts,  for  the  purpose  of  dealing  with  disputes  between 
foreigners  of  different  nationalities,  or  between  foreigners  and 
natives  of  Egypt.  These  Mixed  Courts  were  established  by  the 
Khedive  in  1875,  after  negotiations  with  the  European  Powers. 
They  are  Egyptian  Courts  which  administer  the  law  promul- 
gated formerly  lay  the  Khedive,  and  since  December,  1914,  by 
the  Sultan  of  Egypt.  The  Courts  of  first  instance  consist  of 
seven  judges — 4  foreigners  and  3  Egyptian — while  the  Court 
of  Appeal  consists  of  11  judges — 7  foreigners  and  4  Egyptian. 
The  judges  are  appointed  by  the  Egyptian  Government  after 
communication,  in  the  case  of  foreigners,  with  the  Government 
of  the  country  to  which  they  belong.  These  Courts  have  crim- 
inal jurisdiction  over  foreigners  in  the  matters  enumerated  in 
the  Reglement  d' Organisation  Judicidire  pour  les  proces 
mixtes,  and  have  civil  jurisdiction  over  all  civil  and  commercial 
disputes  between  Egyptians  and  foreigners  and  between  for- 
eigners of  different  nationalities  not  relating  to  the  law  of  per- 
sonal status.  They  have  also  exclusive  jurisdiction  in  actions 
relating  to  immovable  property  to  which  foreigners  are 
parties.  .  .  . 

The  Consular  jurisdiction  over  British  subjects  in  Egypt 
is  exercised  under  the  Order  in  Council  of  November  7,  1910, 
modified  as  regards  Egypt  by  the  Egypt  Order  in  Council  of 
February  6,  1915,  which  was  made  after  the  renunciation  of 
allegiance  to  Turkey  and  the  constitution  of  Egypt  as  a  sepa- 
rate Sultanate  under  British  protection.  There  is  a  Supreme 
Consular  Court  sitting  at  Alexandria,  and  Provincial  Courts 
are  provided  for  by  art.  17  of  the  Order  in  Council.  The  Court 
has  jurisdiction  over  British  subjects  in  Egypt  and  any  prop- 
erty there  of  any  British  subject,  as  also  in  respect  of  British 
ships  within  its  limits.  It  has  also  jurisdiction  in  certain  special 
cases  with  regard  to  Ottoman  subjects  and  foreigners  with  the 
consent  of  their  Government.  Its  jurisdiction  is  in  matters 
criminal  and  matters  civjl.  The  article  which  is  most  directly 
relevant  to  the  present  proceedings  is  art.  103  of  the  Order  in 
Council  of  1910,  which  runs  as  follows:  "The  Supreme  Court 
shall  as  far  as  circumstances  admit  have  for  and  within  the 
Ottoman  Dominions  with  respect  to  British  subjects  all  such 
jurisdiction  in  matrimonial  cases,  except  the  jurisdiction  rela- 


CASDAGLI  v.  CASDAGLI.  123 

tive  to  dissolution  or  nullity  or  jactitation  of  marriage,  as  for 
the  time  being  belongs  to  the  High  Court  in  England."  It 
follows  that  the  marriage  between  the  appellant  and  the  re- 
spondent could  not  be  dissolved  by  the  Consular  Court.  It  was 
urged  upon  us  that  this  pointed  to  the  inference  that  the  Di- 
vorce Court  in  England  must  have  jurisdiction,  as  otherwise  the 
wife  would  be  unable  to  obtain  anywhere  the  relief  to  which  she 
alleges  she  is  entitled.  It  is,  however,  well  settled  that  the  juris- 
diction of  the  Divorce  Court  depends  upon  domicil.  If  the  hus- 
band's domicil  be  English  he  or  his  wife  may  sue  for  a  divorce 
in  the  English  Court.  If  the  domicil  is  not  English  jurisdiction 
will  not  be  conferred  by  the  fact  that  the  relief  cannot  be  ob- 
tained in  the  Consular  Court.  The  fact  that  the  acquisition  by 
a  British  subject  of  an  Egyptian  domicil  would  make  it  im- 
possible to  get  relief  by  way  of  divorce  has  no  bearing  on  the 
question  of  law  whether  such  a  domicil  can  be  obtained  by  him 
in  point  of  law ;  it  might  conceivably  in  some  cases  form  an  ele- 
ment for  consideration  in  inquiring  whether  he  had  the  inten- 
tion to  acquire  a  domicil  in  Egypt. 

The  present  case,  therefore,  depends  upon  the  question 
whether  the  husband  has  an  Egyptian  or  an  English  domicil. 
Upon  the  evidence,  and  according  to  the  findings  of  the  Courts 
below,  the  husband  has  done  everything  possible  to  acquire  an 
Egyptian  domicil,  and  this  he  had  acquired  unless,  as  a  matter 
of  law,  it  be  impossible  for  a  British  subject  in  his  position  to 
acquire  such  a  domicil.  It  was  argued  that  British  subjects  in 
Egypt  enjoy  ex-territoriality,  and  that  this  prevents  the  acquisi- 
tion of  Egyptian  domicil.  This  argument  appears  to  me  to  rest 
upon  a  misconception  as  to  the  position  of  a  British  subject  in 
Egypt.  His  position  is  in  no  respect  analogous  to  that  of  an 
ambassador  and  his  staff  in  a  foreign  country.  He  is  subject 
to  the  law  of  Egypt  as  administered  by  the  Mixed  Tribunals, 
and  pays  taxes.  It  is  true  that  on  a  criminal  charge,  not  being 
one  of  those  enumerated  in  the  law  as  to  Mixed  Tribunals,  he 
must  be  tried  in  His  Majesty's  Consular  Court,  and  civil  dis- 
putes between  him  and  other  British  subjects  and  questions 
as  to  his  personal  status  and  succession  must  be  there  deter- 
mined. The  jurisdiction  exercised  by  His  Majesty  in  Egypt  is 
indeed  extra-territorial,  but  it  is  exercised  with  the  consent  of 
the  Egyptian  Government,  and  its  jurisdiction  is  therefore, 
for  this  purpose,  really  part  of  the  law  of  Egypt  affecting  for- 
eigners there  resident.  The  position  of  a  British  subject  in 


124  JURISDICTION. 

Egypt  is  not  extra-territorial;  if  resident  there,  he  is  subject 
to  the  law  applicable  to  persons  of  his  nationality.  Whether 
that  law  owes  its  existence  simply  to  the  decree  of  the  Govern- 
ment of  Egypt  or  to  the  exercise  by  His  Majesty  of  the  powers 
conferred  on  him  by  treaty  is  immaterial. 

It  has  often  been  pointed  out  that  there  is  a  presumption 
against  the  acquisition  by  a  British  subject  of  a  domicil,  in  such 
countries  as  China  and  the  Ottoman  dominions,  owing  to  the 
difference  of  law,  usages,  and  manners.  Before  special  pro- 
vision was  made  in  the  case  of  foreigners  resident  in  such  coun- 
tries for  the  application  to  their  property  of  their  own  law  of 
succession,  for  their  trial  on  criminal  charges  by  Courts  which 
will  command  their  confidence,  and  for  the  settlement  of  dis- 
putes between  them  and  others  of  the  same  nationality  by  such 
Courts,  the  presumption  against  the  acquisition  of  a  domicil 
in  such  a  country  might  be  regarded  as  overwhelming  unless 
under  very  special  circumstances.  But  since  special  provision 
for  the  protection  of  foreigners  in  such  countries  has  been  made, 
the  strength  of  the  presumption  against  the  acquisition  of  a 
domicil  there  is  very  much  diminished.  Egypt  affords  a  very 
good  illustration  of  this.  What  presumption  is  there  against  the 
acquisition  of  an  Egyptian  domicil  by  a  British  subject  when 
the  country  is  under  British  protection  and  when  the  British 
subject  is  safeguarded  in  all  his  rights  in  the  manner  which  I 
have  described?  The  question  is  one  to  be  tried  on  the  ordi- 
nary principles  applicable  to  such  questions  of  fact.  The  view 
that  it  is  impossible  in  point  of  law  could  be  supported  only 
on  the  assumption  that  the  doctrine  of  ex-territorial  ity  applies 
to  all  British  subjects,  so  that  though  actually  in  Egypt  they 
are  in  contemplation  of  law  still  in  their  own  country,  and  that 
for  this  reason  there  is  not,  and  cannot  be,  the  residence  in  the 
particular  locality  necessary  for  the  acquisition  of  domicil. 
Any  such  view  as  to  impossibility  appears  to  be  erroneous  in 
principle,  and  inconsistent  with  the  evidence  in  this  case  as  to 
the  position  of  a  foreigner  resident  in  Egypt.  It  is,  however, 
necessary  to  examine  the  authorities  which  were  strongly 
pressed  upon  us  as  showing  that  the  point  should  be  treated" 
by  this  House  as  no  longer  open  to  discussion. 

In  the  case  of  The  Indian  Chief,  3  C.  Rob.  12,  the  question 
arose  whether  the  owner  of  cargo,  being  an  American  citizen 
resident  at  Calcutta,  should  be  treated  as  a  British  subject  so 
as  to  render  illegal  his  trading  with  the  enemy.  All  that  was 


CASDAGLI  v.  CASDAGLI.  125 

decided  in  the  case  was  that  the  nominal  sovereignty  of  the 
Great  Mogul  might  for  this  purpose  be  disregarded,  and  that 
the  cargo-owner,  as  he  resided  and  traded  in  Calcutta  under 
the  Government  of  the  East  India  Company,  must  be  treated 
as  a  British  subject,  and  as  he  had  traded  with  the  enemy  the 
cargo  was  condemned.  The  case  was  cited  merely  on  account 
of  the  passage  in  Sir  W.  Scott's  judgment  in  which  he  explains, 
with  even  more  than  his  wonted  charm  of  expression,  the 
position  of  foreign  traders  in  Eastern  countries.  The  passage 
illustrates  the  presumption  against  the  acquisition  of  a  domicil 
of  choice  in  such  Eastern  countries,  but  is  not  otherwise  relevant 
to  the  present  discussion. 

In  1844  the  case  of  Maltass  v.  Maltass,  1  Rob.  Eccl.  67,  80, 
came  before  Dr.  Lushington  sitting  for  Sir  H.  Jenner  Fust  in 
the  Prerogative  Court  of  Canterbury.  The  question  was  as  to 
the  law  which  should  govern  the  will  of  a  British  subject  who 
for  many  years  had  resided  in  Smyrna.  Dr.  Lushington  found 
that  the  deceased  was  a  British  subject,  and  then  proceeded  to 
inquire  whether  he  was  domiciled  in  Smyrna,  but  pointed  out 
that  this  inquiry  would  be  superfluous  if,  with  respect  to  his 
succession,  the  law  of  England  and  the  law  applicable  in  Tur- 
key were  the  same.  Referring  to  the  provisions  of  the  Capitu- 
lations that  the  property  of  British  subjects  dying  in  Turkey 
should  be  disposed  of  according  to  English  law,  he  held  that 
this  applied  even  in  cases  in  which  the  deceased  had  become 
domiciled  in  Turkey,  and  that  it  was  immaterial  whether  he 
had  acquired  a  domicil  in  Smyrna  or  retained  his  English  dom- 
icil, as  in  either  case  the  English  law  would  apply.  He  con- 
cluded with  the  following  observations:  "I  give  no  opinion, 
therefore,  whether  a  British  subject  can  or  cannot  acquire  a 
Turkish  domicil;  but  this  I  must  say, — I  think  every  presump- 
tion is  against  the  intention  of  British  Christian  subjects  volun- 
tarily becoming  domiciled  in  the  Dominions  of  the  Porte.  As 
to  British  subjects,  originally  Mussulmen,  as  in  the  East  Indies, 
or  becoming  Mussulmen,  the  same  reasoning  does  not  apply  to 
them  as  Lord  Stowell  has  said  does  apply  in  cases  of  a  total 
and  entire  difference  of  religion,  customs,  and  habits."  The 
language  of  Dr.  Lushington  in  this  judgment  lends  no  counte- 
nance to  the  idea  that  it  is  impossible  for  an  English  subject 
to  acquire  a  domicil  of  choice  in  a  country  like  Turkey.  So 
far  as  he  touches  upon  the  question  at  all,  he  treats  it  not  as  a 
matter  of  law  but  as  a  question  of  fact. 


126  JURISDICTION. 

4 

In  1882  the  case  of  Tootal's  Trusts,  23  Ch.  D.  532,  534,  was 
decided  by  Chitty  J.  In  that  case  a  petition  was  presented  by 
residuary  legatees  asking  for  a  declaration  that  the  testator  was 
domiciled  at  Shanghai  at  the  time  of  his  death,  and  consequently 
that  no  legacy  duty  was  payable.  The  testator  was  a  British 
subject  who  resided  at  Shanghai  and  died  there.  If  the  domicil 
was  English  the  duty  was  payable,  while  if  the  deceased  had 
acquired  a  domicil  in  China  the  duty  was  not  payable.  The 
testator  had  for  some  years  before  his  death  determined  to 
reside  permanently  at  Shanghai,  and  had  formed  and  expressed 
the  intention  of  never  returning  to  England.  It  was  admitted 
that  it  could  not  be  contended  that  the  domicil  was  Chinese.  It 
is  clear  that  what  was  meant  by  this  admission  was  that  it  could 
not  be  contended  that  the  testator  had  become  domiciled  in 
China  so  as  to  attract  to  his  estate  the  law  applicable  in  China 
to  natives  of  that  country,  and  Chitty  J.  said:  "This  admis- 
sion was  rightly  made.  The  difference  between  the  religion, 
laws,  manners,  and  customs  of  the  Chinese  and  of  Englishmen 
is  so  great  as  to  raise  every  presumption  against  such  a  domrcil, 
and  brings  the  case  within  the  principles  laid  down  by  Lord 
Stowell  in  his  celebrated  judgment  in  The  Indian  Chief,  3  C. 
Rob.  22,  29,  and  by  Dr.  Lushington  in  Maltass  v.  Maltass,  1 
Rob.  Eccl.  67,  80,  81."  Both  of  these  great  judges  had  treated 
the  question  as  one  of  fact,  and  had  pointed  out  the  improbabil- 
ity of  the  acquisition  of  such  a  domicil.  It  is  obvious  that  the 
admission  that  there  was  no  Chinese  domicil  in  that  sense  was 
rightly  made.  What  the  petitioners  contended  for  in  Tootal's 
Trusts  was  what  is  there  called  an  Anglo-Chinese  domicil. 
Some  criticism  has  been  bestowed  upon  this  and  analogous  ex- 
pressions, but  it  appears  to  me  that  the  expression  "Anglo- 
Chinese  domicil"  is  apt  to  denote  compendiously  a  domicil  in 
China  acquired  by  a  British  subject  and  carrying  with  it  the 
privileges  conferred  by  treaty  upon  British  subjects  there  resid- 
ing. These  privileges  appear  to  have  been  analogous  to  those 
enjoyed  by  British  subjects  residing  in  Egypt.  At  p.  536 
Chitty  J.  says  that  the  exception  from  the  jurisdiction  of  His 
Majesty's  Supreme  Court  at  Shanghai  as  a  matrimonial  Court 
in  regard  to  dissolution,  nullity,  or  jactitation  of  marriage,  ap- 
parently left  Englishmen  subject  to  the  jurisdiction  of  the 
Court  for  matrimonial  causes  in  England  in  respect  of  such 
matters.  This  statement  requires  qualification.  The  absence 
of  provision  for  divorce  in  Shanghai  cannot  of  itself  confer 


CASDAGLI  v.  CASDAGLI.  127 

jurisdiction  upon  the  English  Court;  it  depends  upon  the  ques- 
tion whether  the  domic il  has  remained  English.  If  the  English 
domicil  has  been  replaced  by  an  Anglo-Chinese  one  the  jurisdic- 
tion of  the  English  Courts  would  be  gone. 

Chitty  J.  went  on  to  consider  whether,  on  principle,  an 
Anglo-Chinese  domicil  can  be  established.  He  came  to  the 
conclusion  that  "there  is  no  such  thing  known  to  the  law  as  an 
Anglo-Chinese  domicil."  The  view  of  Chitty  J.  was  that  the 
domicil  alleged  is  in  its  nature  extra-territorial.  I  cannot  agree. 
The  position  of  British  subjects  in  such  a  country  is  not  extra- 
territorial. The  domicil  is  acquired  and  can  be  acquired  only 
by  residence  in  Egypt.  The  law  applicable  to  the  foreigner 
so  residing  is,  by  the  consent  of  the  Egyptian  Government, 
partly  Egyptian  and  partly  English.  This  is  the  result  of  the 
Convention  between  the  two  Governments.  Though  the  domicil 
is  Egyptian,  the  law  applicable  to  persons  who  have  acquired 
such  a  domicil  varies  according  to  the  nationality  of  the  person. 
The  foreigner  does  not  become  domiciled  as  a  member  of  the 
English  community  in  Egypt,  but  he  acquires  an  Egyptian  dom- 
icil because  he,  by  his  own  choice,  has  made  Egypt  his  perma- 
nent home,  and  you  have  then  to  consider  by  what  code  of  law 
he  and  his  estate  are  governed  according  to  the  law  in  force 
in  Egypt.  The  domicil  is  purely  territorial,  and  you  go  to  the 
law  in  force  in  the  territory  to  see  what  system  of  law  it  treats 
as  applicable  to  resident  foreigners  and  to  what  Courts  they 
are  subject. 

Chitty  J.  refers  to  the  case  of  British  India,  where  there  are 
many  particular  sects  governed  by  particular  laws  applicable 
to  them  specially,  and  distinguishes  it  on  the  ground  that  these 
special  laws  are  not  laws  of  their  own  enactment,  but  are  merely 
parts  of  the  law  of  the  governing  community  or  supreme  power. 
The  supposed  distinction  does  not  exist.  In  Egypt  it  is  part 
of  the  law  of  the  governing  community  or  supreme  Power;  in 
other  words,  it  is  part  of  the  law  of  Egypt  that  English  resi- 
dents are  governed  by  English  law  and  that  they  are  amenable 
in  certain  cases  only  to  English  Courts  established  by  the  King 
of  England  with  the  consent  of  the  Egyptian  Government. 
Chitty  J.  puts  the  case  of  a  citizen  of  the  United  States  who 
attaches  himself  to  the  British  community  at  Shanghai,  and 
says  that,  according  to  the  petitioner's  argument,  he  would 
acquire  an  Anglo-Chinese  domicil,  and  this  he  treats  as  a  reductio 
ad  absurdum  of  the  petitioner's  contention.  A  citizen  of  the 


128  JURISDICTION. 

United  States  resident  permanently  in  Shanghai  would  be  sub- 
ject to  the  law  which  attaches  to  citizens  of  the  United  States 
so  settling  in  China  according  to  the  law  of  China.  His  domicil 
and  the  law  applicable  would  not  arise  from  attaching  himself 
to  any  particular  community  but  from  his  personal  residence 
in  Shanghai  coupled  with  his  nationality.  His  having  attached 
himself,  whatever  that  may  denote,  to  the  English  community 
would  be  immaterial  unless  he  had  acquired  English  nationality. 

I  think  that  the  respondent's  counsel  were  entitled  to  treat 
In  re  Tootal's  Trusts  as  a  decision  in  their  favour  of  the  point 
now  in  dispute;  and,  indeed,  I  do  not  think  that  this  was  con- 
tested by  Mr.  Wallace.  But  the  decision  is,  of  course,  not  bind- 
ing upon  this  House,  and  it  is,  in  my  opinion,  erroneous.  There 
has  been  no  such  general  acquiescence  in  the  correctness  of  the 
decision  in  In  re  Tootal's  Trusts,  and  change  of  position  in  re- 
liance upon  that  decision,  as  to  render  it  improper  that  this 
House  should  act  upon  its  own  view  of  the  law. 

The  case  of  Abd-ul-Messih  v.  Farra,  13  App.  Cas.  431,  came 
before  the  Judicial  Committee  of  the  Privy  Council  in  1887  on 
an  appeal  from  the  Supreme  Consular  Court  at  Constantinople. 
The  question  related  to  the  succession  to  a  person  who  had  died 
in  Egypt.  The  deceased  was  born  at  Baghdad,  in  the  Ottoman 
dominions,  of  Ottoman  parents,  and  in  early  life  went  to  India, 
whence,  after  a  considerable  period,  he  went  to  Jedda,  which  was 
also  in  the  dominions  of  the  Porte.  In  1858  he  went  to  Cairo, 
where  he  remained  until  his  death,  under  the  protection  of  the 
British  Government.  Proceedings  were  taken  in  the  Consular 
Court  by  his  widow  to  obtain  probate  of  his  will,  which  was  in 
the  English  form.  The  judge  found  that  the  testator  died  domi- 
ciled in  the  Ottoman  Empire,  that  his  domicil  of  origin  was 
there,  and  that  he  was  a  member  of  the  Chaldean  Catholic  com- 
munity, and  decreed  that  the  law  of  Turkey  governing  the  suc- 
cession to  a  member  of  the  Chaldean  Catholic  community  in 
Ottoman  dominions  should  be  followed  in  distributing  the  effects 
of  the  deceased.  From  this  order  an  appeal  was  brought  by 
the  widow  to  His  Majesty  in  Council.  In  support  of  the  appeal 
two  arguments  were  put  forward.  First,  that  English  law 
should  apply  to  the  succession  of  the  deceased  as  a  British  pro- 
tected person;  and  second,  that  the  deceased  was  affiliated  to 
the  community  of  persons  under  English  jurisdiction  at  Cairo, 
who  formed  as  it  were,  an  extra-territorial  colony  of  the  Crown, 
and  that  subjection  to  the  jurisdiction  of  the  Consular  Court  is 


CASDAGLI  v.  CASDAGLI.  129 

equivalent  to  residence  in  the  country  to  which  these  Courts  be- 
long, so  as  to  establish  a  domicil  in  that  country.  The  nature 
of  these  contentions  must  be  borne  in  mind  in  order  to  appre- 
ciate the  terms  of  the  judgment.  What  the  Judicial  Committee 
decided  was  that  the  testator  was  not  a  British  subject,  and  that 
the  fact  that  he  was  a  person  under  British  protection  resident 
in  Egypt  did  not  render  English  law  applicable  to  his  suc- 
cession. 

The  judgment  was  delivered  by  Lord  "Watson,  who  points  out 
13  App.  Cas.  439-441,  that  the  idea  of  domicil,  independent  of 
locality,  and  arising  simply  from  membership  of  a  privileged 
society,  is  not  reconcilable  with  any  of  the  numerous  definitions 
of  domicil  to  be  found  in  the  books.  He  goes  on  to  say :  ' '  Their 
Lordships  are  satisfied  that  there  is  neither  principle  nor  au- 
thority for  holding  that  there  is  such  a  thing  as  domicil  arising 
from  society,  and  not  from  connection  with  a  locality.  In  re 
Tootal's  Trusts  is  an  authority  directly  in  point,  and  their  Lord- 
ships entirely  concur  in  the  reasoning  by  which  Mr.  Justice 
Chitty  supported  his  decision  in  that  case."  I  concur  with  the 
proposition  that  there  is  no  such  thing  as  domicil  independent 
of  locality.  Residence  in  a  particular  locality  is  of  the  very 
essence  of  domicil,  and  the  contention  put  forward  by  the  ap- 
pellant in  Abd-ul-Messih 's  Case  that  subjection  to  the  jurisdic- 
tion of  the  Consular  Courts  is  equivalent  to  residence  in  the 
country  to  which  these  Courts  belong,  so  as  to  establish  domicil 
in  that  country,  was  preposterous.  On  the  assumption  that  the 
deceased  Adb-ul-Messih  was  domiciled  in  Egypt  in  virtue  of 
permanent  residence  there,  then  if  he  had  become  in  fact  a 
British  subject,  the  law  applicable  to  British  subjects  resident 
in  Egypt  would  have  applied  in  his  case.  Mere  association  writh 
the  British  in  Egypt  could  not  have  that  effect.  If  Chitty  J. 
in  In  re  Tootal's  Trusts  had  merely  decided  that  there  is  no  such 
thing  as  domicil  arising  from  society,  and  not  from  connection 
with  a  locality,  the  decision  would  have  been  beyond  criticism. 
It  went,  I  think,  a  great  deal  further,  and  I  find  myself  unable 
to  agree  with  the  judgment  of  Chitty  J.  in  that  case,  or  with 
Lord  Watson's  approval  of  his  reasoning,  an  approval  which 
was  in  no  way  necessary  for  the  decision  of  the  case  before  the 
Judicial  Committee. 

Lord  Watson  gives  a  statement  as  to  the  position  of  for- 
eigners in  Egypt  in  the  following  terms:  "Certain  privileges 
have  been  conceded  by  treaty  to  residents  in  Egypt,  whether  sub- 


130  JURISDICTION. 

jects  of  the  Queen  or  foreigners,  whose  names  are  duly  inscribed 
in  the  register  kept  for  that  purpose  at  the  British  Consulate. 
They  are  amenable  only  to  the  jurisdiction  of  our  Consular 
Courts  in  matters  civil  and  criminal;  and  they  enjoy  immunity 
from  territorial  rule  and  taxation.  They  constitute  a  privileged 
society,  living  under  English  law,  on  Egyptian  soil,  and  inde- 
pendent of  Egyptian  Courts  and  tax-gatherers."  This  descrip- 
tion is  not  in  accordance  with  the  evidence  in  the  case  now  be- 
fore your  Lordships,  and  I  cannot  help  thinking  that  it  is  due 
to  some  misconception  of  the  evidence  in  the  Abd-ul-Messih 
Case.  Foreigners  residing  in  Egypt  have,  since  1875,  been  sub- 
ject to  the  jurisdiction  of  Mixed  Courts,  which  are  Egyptian 
tribunals  administering  Egyptian  law,  and  in  certain  cases  to 
their  own  Consular  Courts,  and  they  are  subject  to  Egyptian 
taxation.  If  the  facts  as  to  the  position  of  foreigners  in  Egypt 
had  been  correctly  appreciated  it  would  have  been  impossible 
for  the  appellant  to  put  forward  the  contention  which  Lord 
Watson  summarizes  as  follows:  "The  appellant  maintained 
that  a  community  of  that  description  ought,  for  all  purposes  of 
domicil,  to  be  regarded  as  an  ex-territorial  colony  of  the  Crown ; 
and  that  permanent  membership  ought  to  carry  with  it  the  same 
civil  consequences  as  permanent  residence  in  England,  or  in  one 
of  the  colonial  possessions  of  Great  Britain,  where  English  law 
prevails. ' ' 

The  appellant  in  Abd-ul-Messih 's  Case  appears  also  to  have 
argued  that  the  effect  of  the  Order  in  Council  was  that  English 
law  is  the  sole  criterion  by  which,  in  the  case  not  only  of  British 
subjects,  but  also  of  persons  under  British  protection  resident 
in  Egypt  at  the  time  of  their  decease,  the  capacity  to  make  a 
will,  and  its  validity  when  made,  must  be  determined.  This 
argument  was  dismissed,  and  rightly  dismissed,  by  Lord  Watson 
as  wholly  unsustainable  on  the  construction  of  the  Order  in 
Council.  13  App.  Gas.  441,  443.  A  further  and  alternative 
contention  was  advanced  by  the  appellant's  counsel  in  that  case 
to  the  effect  that  the  deceased  had  lost  his  Turkish  nationality 
and  had  become  a  subject  of  the  Queen.  It  is  pointed  out  in  the 
judgment,  that  it  was  clear  that  the  deceased  was  not,  in  the 
sense  of  English  law,  a  subject  of  Her  Majesty,  and  that  he  did 
not  possess  that  status  within  the  meaning  of  the  Order,  which 
expressly  enacts  that  it  must  be  attained  either  by  birth  or 
naturalisation. 

With  reference  to  a  contention  that  by  an  Order  not  appealed 


CASDAGLI  v.  CASDAGLI.  131 

against  the  jurisdiction  of  the  Consular  Court  had  been  sus- 
tained in  respect  of  the  "deceased  having  acquired  the  status 
of  a  protected  British  subject,"  and  that  this  was  decisive  that 
the  deceased  had  acquired  that  status  of  a  protected  British  sub- 
ject, Lord  Watson  pointed  out  that  this  expression  does  not 
occur  in  the  order,  and  has  no  technical  meaning,  and  that  it 
must  be  understood  as  meaning  merely  that  the  deceased  had 
de  facto  enjoyed  the  same  measure  of  protection  as  that  which 
is  accorded  by  treaty  to  British  subjects  in  the  Dominions  of 
the  Porte.  This,  of  course,  is  very  different  from  his  having  be- 
come a  British  subject.  The  appellant,  however,  argued  that  in 
point  of  Turkish  law  the  deceased  would  be  regarded  as  a  Brit- 
ish subject,  in  virtue  of  the  protection  which  he  enjoyed.  There 
was  a  conflict  of  evidence  between  the  legal  experts  on  this 
point,  and  the  Judicial  Committee  did  not  think  it  necessary  to 
decide  what  was  the  position  of  the  deceased  in  this  respect  by 
the  law  of  Turkey,  for  the  reason  stated  in  the  following  sen- 
tence of  the  judgment:  "If  it  be  assumed  that,  in  consequence 
of  his  having  placed  himself  under  foreign  protection,  the  Porte 
resigned  the  deceased,  both  civilly  and  politically,  to  the  law  of 
the  protecting  Power,  that  would  merely  give  him  the  same 
rights  as  if  his  nationality  had  been  English,  and  the  territorial 
law  of  his  domicil  would  still  be  applicable  to  his  capacity  to 
make  a  will,  and  to  the  distribution  of  his  estate."  It  may  be 
observed,  however,  that  if  his  nationality  had  been,  in  fact,  En- 
glish, and  his  domicil  was  in  Egypt,  the  English  law  would,  for 
the  reasons  I  have  given  in  the  earlier  part  of  this  judgment, 
have  applied  to  his  capacity  to  make  a  will  and  to  the  distribu- 
tion of  his  estate.  The  true  justification  for  the  course  taken 
by  the  Judicial  Committee  in  treating  the  opinion  of  the  legal 
experts  as  to  Turkish  law  as  irrelevant  is  that  the  deceased  was 
not,  in  point  of  English  law,  a  British  subject,  and  that  it  was 
quite  immaterial  whether  the  Porte  had  resigned  the  deceased 
to  the  Protecting  Power  unless  that  Power  had  accepted  the 
resignation  and  treated  the  deceased  as  a  British  subject. 

Having  failed  in  the  attempt  to  establish  that  the  deceased 
was  a  British  subject,  the  appellant  asked  to  have  a  further 
proof  for  the  purpose  of  showing  that  the  Turkish  Courts  in 
administering  the  estate  of  a  protected  person  in  the  position 
of  the  deceased  would  have  been  guided  not  by  their  own  mu- 
nicipal law,  but  by  the  rules  followed  by  English  Courts  in  the 
case  of  domiciled  Englishmen.  Lord  Watson  points  out  that 


132  JURISDICTION. 

there  was  no  suggestion  on  the  Eecord  that  there  was  any  spe- 
cial law  in  Turkey  as  to  the  succession  of  a  protected  person,  and 
that  no  further  proof  upon  this  point  could  be  allowed. 

The  last  argument  advanced  by  the  appellant  in  the  Abd-ul- 
Messih  Case  was  that  the  deceased's  residence  in  Cairo  had 
conferred  upon  him  an  Egyptian,  as  distinct  from  a  Turkish, 
domicil,  but  it  is  there  pointed  out  that  it  had  not  been  shown 
that  a  domicil  in  Egypt,  so  far  as  regards  its  civil  consequences, 
differs  in  any  respect  from  a  domicil  in  other  parts  of  the  Ot- 
toman Dominions.  It  is  indeed  obvious  that  the  questions  aris- 
ing on  an  Egyptian  domicil  in  1880  would  have  been  substan- 
tially the  same  as  those  arising  upon  a  domicil,  say  in  Baghdad, 
where  the  deceased  was  born.  Lord  Watson  added  that  res- 
idence in  a  foreign  state  as  a  privileged  member  of  an  ex-ter- 
ritorial community,  although  it  may  be  effectual  to  destroy  a 
residential  domicil  acquired  elsewhere,  is  ineffectual  to  create  a 
new  domicil  of  choice.  This  proposition  is  a  restatement  of  what 
was  said  in  the  earlier  part  of  the  judgment  and  for  reasons 
which  I  have  given  in  dealing  with  that  passage  I  am  unable  to 
assent  to  it. 

The  decision  in  the  Abd-ul-Messih  Case  was  clearly  right  on 
the  broad  ground  that  the  deceased  was  not  a  British  subject, 
but  I  must  with  all  respect  express  my  dissent  from  some  of  the 
dicta  which  occur  in  the  course  of  the  judgment,  for  the  reasons 
which  I  have  given  in  referring  to  them.  The  correctness  of 
the  decision  is  in  no  way  dependent  upon  these  dicta. 

The  decision  in  the  case  of  In  re  Tootal's  Trusts  has  been  a 
good  deal  canvassed.  Sir  Samuel  Evans,  that  very  distin- 
guished judge  whose  untimely  death  we  all  deplore,  sitting  in 
the  Prize  Court,  made  some  observations  with  regard  to  In  re 
Tootal's  Trusts  which  are  worth  quoting.  In  giving  judgment 
in  the  case  of  The  Eumaeus,  November,  1915,  1  Br.  &  Col.  P. 
C.  605,  615,  he  said:  "In  this  case  I  am  not  called  upon  to 
express  any  opinion  upon  the  question  whether  at  the  present 
day  a  British  subject  can  acquire  a  civil  domicil  in  an  Oriental 
country  like  China.  In  re  Tootal's  Trusts  may  or  may  not  be 
good  law.  It  has  been  much  criticised  by  jurists,  and  has  been 
recently  dissented  from  in  a  judgment  of  the  Supreme  Judicial 
Court  of  Maine  in  Mather  v.  Cunningham,  105  Maine,  326;  74 
Atlantic  Rep.  809.  The  decision  in  the  case  now  before  the 
Court  does  not  involve  that  question."  In  the  case  to  which 
Sir  Samuel  Evans  refers  (Mather  v.  Cunningham),  as  appears 


CASDAGLI  v.  CASDAGLI.  133 

from  the  report  in  74  Atlantic  Reporter,  the  only  report  which 
I  have  seen,  the  Supreme  Court  of  Maine,  sitting  as  the  Su- 
preme Court  of  Probate,  allowed  an  appeal  from  an  order  of  the 
Probate  Court  in  Waldo  County  appointing  an  administrator. 
The  Court  on  the  appeal  consisted  of  Emery  C.  J.  and  five  other 
Judges.  The  deceased  had  made  his  home  and  carried  on  his 
business  at  Shanghai,  his  domicil  of  origin  having  been  in  Waldo 
County,  Maine,  and  the  question  on  which  the  case  turned  was 
whether  an  American  can  as  a  matter  of  law  acquire  a  domicil 
in  the  province  of  Shanghai  where,  by  treaty,  American  law  is 
substituted  for  the  Chinese  local  laws.  The  Supreme  Court 
made  an  elaborate  examination  of  the  case  of  Tootal's  Trusts 
and  of  many  criticisms  and  comments  which  had  been  made  on 
that  decision,  and  arrived  at  the  conclusion  that  its  doctrine 
could  not  be  supported.  It  was  pointed  out  that  domicil  de- 
pends upon  locality,  and  that  the  law  of  the  locality  attaches 
to  the  person  who  has  acquired  a  domicil  there,  whether  that 
law  be  decreed  by  the  Supreme  Power  of  the  foreign  country 
or  is  the  result  of  treaty.  They  say  that  the  "whole  trend  of 
modern  authority  is  in  opposition  to  the  dictum  advanced  in 
In  re  Tootal's  Trusts."  .  .  .  The  Court  .  .  .  gave  its 
decision  in  the  following  terms:  "The  Court  is  of  the  opinion 
that  Henry  J.  Cunningham,  the  decedent,  at  the  time  of  his  de- 
cease, had  abandoned  his  domicil  of  origin  in  Waldo  County, 
and  had  acquired  a  domicil  of  choice  in  Shanghai,"  and  the  ap- 
peal was  sustained.  .  .  . 

In  March,  1916,  in  H.  M.  Court  of  Prize  for  Egypt  sitting  at 
Alexandria,  Cator  P.  made  the  following  observations  in  the 
case  of  The  Derfflinger  (No.  1)  3  Br.  &  Col.  P.  C.  389:  "From 
time  to  time  questions  as  to  the  status  of  British  subjects  in 
China  and  the  Ottoman  Dominions  have  come  before  our  Courts, 
and  it  has  been  settled  that  no  British  subject  can  change  his 
legal  domicil,  by  residence  in  any  place  where  the  Crown  has 
ex-territorial  authority.  That,  as  we  know  to  our  cost,  owing 
to  the  great  inconvenience  which  it  has  entailed  upon  the  British 
community,  is,  I  think,  the  effect  of  In  re  Tootal's  Trusts  ap- 
proved of  by  the  Privy  Council  in  Abd-ul-Messih  v.  Farra. 
These  decisions,  it  is  true,  relate  only  to  the  subtle  and  artificial 
doctrine  of  personal  domicil  which  has  been  evolved  by  our 
civil  Courts  for  the  purpose  of  determining  questions  relating 
principally  to  probate  and  administration;  and  a  legal  domicil 
for  the  purpose  of  a  Court  of  probate  is,  I  need  hardly  say,  a 


134  JURISDICTION. 

very  different  thing  from  a  commercial  domicil  for  the  purpose 
of  a  Prize  Court.  But  In  re  Tootal  's  Trusts  emphasises  the  fact 
that  there  still  exist  countries  where,  owing  to  fundamental 
differences  in  race  and  religion,  Europeans  do  not  merge  in  the 
general  life  of  the  native  inhabitants,  but  keep  themselves  apart 
in  separate  communities;  and  where  such  separation  is  sanc- 
tioned by  the  exercise  of  ex-territorial  authority  I  am  of  opinion 
that  it  is  impossible  for  any  individual  to  acquire  a  trade  dom- 
icil other  than  that  of  the  country  to  which  he  owes  allegiance. ' ' 
The  fact  that  inconvenience  has  resulted  from  a  particular  de- 
cision would  of  course  be  no  reason  for  disturbing  it,  if  sound 
in  law.  But,  as  in  my  opinion  Tootal's  Case  and  the  dicta  ap- 
proving it  are  erroneous,  I  think  that  the  British  community 
in  Egypt  should  be  relieved  from  the  inconvenience  which  Cator 
P.  says  has  been  thereby  caused. 

I  entirely  agree  with  the  conclusion  arrived  at  by  Scrutton 
L.  J.  in  his  admirably  reasoned  judgment. 

For  these  reasons  I  am  of  opinion  that  this  Appeal  should  be 
allowed.  .  .  . 

Order  of  the  Court  of  Appeal  reversed.    .    .    . 

NOTE. — Territorial  Sovereignty. — The  right  of  a  sovereign  state  to 
control  all  persons  and  things  within  its  territorial  limits  has  been 
asserted  in  innumerable  cases.  On  the  whole  subject,  see  Moore, 
Digest,  II,  ch.  vi.  The  principle  was  formulated  by  Chief  Justice 
Marshall  in  a  much-quoted  passage  in  The  Schooner  Exchange  v. 
M'Faddon  (1812),  7  Cranch,  116,  136: 

The  jurisdiction  of  the  nation  within  its  own  territory  is 
necessarily  exclusive  and  absolute.  It  is  susceptible  of  no 
limitation  not  imposed  by  itself.  Any  restriction  upon  it,  de- 
riving validity  from  an  external  source,  would  imply  a  dim- 
inution of  its  sovereignty  to  the  extent  of  the  restriction,  and 
an  investment  of  that  sovereignty  to  the  same  extent  in  that 
power  which  could  impose  such  restriction.  All  exceptions, 
therefore,  to  the  full  and  complete  power  of  a  nation  within 
its  own  territories  must  be  traced  up  to  the  consent  of  the 
nation  itself.  They  can  flow  from  no  other  legitimate  source. 
This  consent  may  be  either  express  or  implied. 

One  of  the  most  important  applications  of  the  principle  that  a  state 
has  jurisdiction  over  all  persons  and  things  within  its  territories  is 
in  relation  to  aliens.  Since  the  state  controls  its  own  territory  it 
may  exclude  aliens,  Nishimura  Eldu  v.  United  States  (1892),  142  U.  S. 
651;  Fong  Yue  Ting  v.  United  States  (1893),  149  U.  S.  698;  Musgrove 
v.  Chun  Teong  Toy  (1891),  60  L.  J.  P.  C.  28.  It  may  also  expel  aliens, 
United  States  v,  Williams  (1904),  194  U.  S.  279;  Tiaco  T.  Forbes 


NOTE.  135 

(1913),  228  U.  S.  549;  Attorney-General  for  Canada  v.  Cain  (1906), 
L.  R.  [1906]  A.  C.  542.  But  in  exercising  its  right  to  exclude  or  to 
expel,  a  state  must  be  mindful  of  its  duties  as  a  member  of  the  family 
of  nations.  The  political  and  commercial  relations  of  nations  are 
so  close  and  the  privilege  of  entrance  and  residence  has  been  so 
freely  accorded  that  an  arbitrary  exclusion  or  expulsion  may  give 
rise  to  a  diplomatic  claim.  Because  of  the  protection  which  they 
receive  from  the  state  under  whose  jurisdiction  they  reside,  aliens 
owe  to  it  a  "temporary  allegiance,"  Calvin's  case  (1608),  7  Reports, 
18a;  Johnstone  v.  Pedlar  (1921),  L.  R.  [1921]  2  A.  C.  262;  Carlisle 
v.  United  States  (1873),  16  Wallace,  147,  and  must  discharge 
many  of  the  duties  which  are  exacted  of  citizens,  Lau  Ow  Bew  v. 
United  States  (1892),  144  U.  S.  47,  62.  They  are  subject  to  the  ter- 
ritorial law  and  may  be  punished  for  offenses  committed  against 
the  laws  under  which  they  live,  Luke  v.  Calhoun  County  (1875),  52 
Ala.  115,  121;  Moore,  Digest,  IV,  9.  They  are  subject  to  taxation,  even 
though  discriminatory,  Mager  v.  Grima  (1850),  8  Howard,  490,  and 
may  be  called  upon  for  service  in  the  police  or  the  militia  in  the 
maintenance  of  public  order,  Moore,  Digest,  IV,  50,  and  their  prop- 
erty within  the  jurisdiction  may  be  requisitioned  in  order  to  meet 
the  necessities  of  war,  Alexander  v.  Pfau  (1902),  Transvaal  Law  Re- 
ports [1902]  T.  S.  155.  See  also  Bonfils  (Fauchille),  sec.  441;  Borchard, 
ch.  ii;  J.  H.  Beale,  "The  Jurisdiction  of  Courts  over  Foreigners," 
Harvard  Law  Review,  XXVI,  193,  283;  Bouv6,  A  Treatise  on  the  Laws 
Governing  the  Exclusion  and  Expulsion  of  Aliens  in  the  United  States. 
By  virtue  of  its  territorial  sovereignty,  a  state  may  exclude  mer- 
chandise, Butfield  v.  Stranahan  (1904),  192  U.  S.  470;  or  vessels,  Pat- 
terson v.  The  Bark  Eudora  (1903),  190  U.  S.  169;  or  admit  them  on 
conditions,  Oceanic  Steam  Navigation  Co.  v.  Stranahan  (1909),  214 
U.  S.  320.  Its  sovereignty  also  extends  to  all  forms  of  property 
within  its  territorial  limits.  What  limitations  shall  be  placed  upon 
the  exercise  of  its  power  over  such  property  is  primarily  a  question 
of  municipal  law,  but  the  existence  of  the  power  is  universally  recog- 
nized and  provision  for  its  exercise  in  the  public  interest  is  quite 
generally  made.  Besides  seizure  by  way  of  reprisal,  which  rests  upon 
a  different  basis,  three  situations  should  be  distinguished:  the  power 
of  the  state  (1)  over  the  property  of  its  nationals,  (2)  over  the 
property  of  aliens  in  time  of  peace,  and  (3)  over  the  property  ol 
neutral  aliens  in  time  of  war.  The  power  of  the  state  to  control 
the  property  of  its  nationals  is  not  questioned.  For  Great  Britain 
see  In  re  A  Petition  of  Right  (1915),  L.  R.  [1915]  3  K.  B.  649,  where 
the  extent  to  which  the  King  may  use  his  prerogative  in  defense  of 
the  realm  is  fully  discussed,  and  The  Broadmayne  (1916),  L.  R,  [1916] 
P.  64.  The  power  to  requisition  the  property  of  subjects  by  virtue 
of  the  royal  prerogative  in  a  time  of  national  emergency  is  not 
confined,  in  the  words  of  the  Earl  of  Reading,  to  "such  a  state  of 
things  existing  that  unless  the  prerogative  is  invoked  the  nation 
will  succumb."  It  is  sufficient  if  there  is  "an  urgent  necessity  for 
taking  extreme  steps  for  the  protection  of  the  Realm."  Crown  of 
Leon  (Owners)  v.  Admiralty  Commissioners  (1920),  L.  R.  [1921]  1 


1-36  JURISDICTION. 

K.  B.  595,  604.  In  The  Antares  (1915),  1  Br.  &  Col.  Prize  Cases, 
261,  the  application  of  the  Crown  to  requisition  certain  neutrally- 
owned  copper  in  the  custody  of  the  Prize  Court  was  denied.  The 
prize  proceedings  were  then  abandoned  and  the  copper,  being 
within  the  territorial  jurisdiction,  was  requisitioned  under  the  com- 
mon law  powers  of  the  Crown  without  question.  See  Lord  Birken- 
head's  argument  for  the  Crown  in  The  Zamora  (1916),  L.  R.  [1916] 
2  A.  C.  77,  83.  In  the  United  States  the  Constitution  provides  that 
private  property  shall  not  be  taken  for  public  use  without  just  com- 
pensation, thus  implying  that  it  may  be  taken  if  compensation  is 
given.  If  the  property  taken  is  land,  no  question  is  raised  as  to 
the  power  of  the  state  to  take  it  whether  it  be  owned  by  nationals 
or  by  aliens.  All  that  is  necessary  is  that  the  taking  should  be  for 
a  public  purpose  and  that  compensation  should  be  made.  But  when 
the  property  seized  is  neutrally-owned  personalty  which  may  be  within 
the  limits  of  the  state  only  temporarily,  and  the  loss  of  which,  as  in 
the  case  of  ships,  may  affect  adversely  not  only  the  owner  but  the 
country  of  his  allegiance,  the  right  to  seize  it  is  disputed,  and  a  distinc- 
tion has  been  drawn  between  seizures  of  neutral  property  in  time  of 
peace  and  such  seizures  in  time  of  war,  and  between  ships  and  other 
forms  of  property.  See  note  on  Jus  Angariae,  post,  533. 

Whether  a  state  may  punish  an  offense  against  its  laws  which  was 
committed  abroad  has  been  the  subject  of  many  controversies,  tho 
most  famous  of-  which  was  the  Cutting  Case.  Cutting,  an  American 
citizen,  had  published  in  Texas  a  newspaper  article  reflecting  on  a 
citizen  of  Mexico.  When  Cutting  happened  to  be  in  Mexico,  the 
victim  ot  his  attack  sued  him  for  libel  and  procured  his  arrest.  Tho 
American  government  argued  that  whatever  offense  had  been  com- 
mitted had  occurred  in  Texas,  while  the  Mexican  government  claimed 
jurisdiction  over  all  offenses  against  its  citizens  wherever  committed. 
The  plaintiff  having  discontinued  his  suit,  Cutting  was  released. 
See  Professor  John  Bassett  Moore's  comprehensive  Report  on  Extra- 
territorial Crime — the  best  discussion  of  the  subject.  See  also  McLeod 
v.  Attorney-General  of  New  South  Wales,  [1891]  Appeal  Cases,  455; 
Rex  v.  Lynch,  [1903]  1  K.  B.  444;  and  Moore,  Digest,  II,  225. 

As  to  the  jurisdiction  of  a  state  over  leased  territory,  see  Interna- 
tional Law  Situations,  1902,  28. 

Domicile. — Modern  facilities  for  communication  and  transportation 
are  such  that  in  every  country  there  are  large  numbers  of  aliens 
whose  residence  therein  is  of  so  permanent  a  character  that  they  are 
in  most  respects  identified  with  the  country.  Persons  in  the  situation 
described  may  or  may  not  be  domiciled  in  the  country  of  residence. 
Domicile  has  been  denned  as  the  place  where  a  person  "has  his  true, 
fixed,  permanent  home  and  principal  establishment,  and  to  which, 
whenever  he  is  absent,  he  has  the  intention  of  .returning"  (Story, 
Conflict  of  Laws,  sec.  41),  as  "a  residence  acquired  as  a  final  abode" 
(Wharton,  Conflict  of  Laws,  sec.  21),  and  as  "a  legal  home"  (Beale, 
Cases  on  the  Conflict  of  Laws,  III,  508).  A  judge,  apparently  of  Irish 
extraction,  described  a  man's  domicile  as  the  place  where  he  might 
be  expected  to  be  when  he  was  not  in  some  other  place.  Every  per- 


NOTE.  137 

son  must  have  a  domicile.  The  domicile  of  origin  of  a  legitimate 
child  is  the  domicile  of  its  father  at  the  time  of  its  birth,  while  that 
of  an  illegitimate  child  is  that  of  its  mother,  Urquhart  v.  Butterfield 
(1887),  37  Ch.  D.  357.  The  domicile  of  birth  continues  until 
another  is  obtained,  The  Venus  (1814),  8  Cranch,  253,  278.  In 
America  a  domicile  of  choice  is  usually  held  to  continue  until 
another  is  acquired,  but  the  English  courts  hold  that  a  domicile 
of  choice  may  be  abandoned  without  the  acquisition  of  another,  in 
which  case  the  domicile  of  origin  reverts,  Udny  v.  Udny  (1869),  L.  R. 
1  H.  L.  441.  In  order  to  acquire  a  domicile  there  must  be  both  resi- 
dence and  intent  to  make  the  place  of  residence  one's  home,  Bejl  v. 
Kennedy  (1868),  L.  R.  1  H.  L.  (Scotch)  307.  The  best  evidence  of 
intent  is  the  length  of  the  residence,  The  Harmony  (1800),  2  C.  Robin- 
son, 322,  post,  411;  The  Ann  Green  (1812),  1  Gallison,  274,  284. 
Except  in  the  case  of  the  so-called  Anglo-Indian  domicile,  The  Indian 
Chief  (1801),  3  C.  Robinson,  12,  the  British  courts  long  assumed  that 
no  length  of  residence  by  a  European  in  an  oriental  country  could 
effect  such  a  merging  in  the  community  as  would  result  in  the  ac- 
quisition of  a  civil  domicile,  Re  Tootal's  Trusts  (1883),  23  Ch.  Div. 
532;  Abd-ul-Messih  v.  Farra  (1887),  13  A.  C.  431;  Abdallah  v.  Rick- 
ards  (1884),  4  T.  L.  R.  622;  The  Liitzow  (Egypt,  1915),  1  Br.  &  Col. 
P.  C.  528;  but  contra,  Mather  v.  Cunningham  (1909),  105  Maine,  326. 
The  American  decision,  which  has  now  been  followed  in  Great  Britain, 
is  more  in  harmony  with  the  opinion  and  conditions  of  the  present. 
The  decision  in  Casdagli  v.  Casdagli  [1919]  A.  C.  145  is  discussed  in 
notes  in  Harvard  Law  Review,  XXXII,  432,  Yale  Law  Journal,  XXVIII, 
810,  and  Michigan  Law  Review,  XVII,  694.  See  also  Huberich,  "Domi- 
cile in  Countries  Granting  Extraterritorial  Privileges  to  Foreigners," 
Law  Quarterly  Review,  XXIV,  440.  Domicile  does  not  necessarily 
either  confer  or  forfeit  citizenship,  although  in  fact  it  is  usually 
a  prerequisite  to  naturalization,  and  its  acquisition  in  another 
country  may  be  made  the  ground  for  forfeiture  of  citizenship.  The 
distinction  between  domicile  and  residence  is  discussed  in  Williams 
v.  Commonwealth  (1914),  116  Va.  272,  9  Va.  Ap.  86,  and  in  Cooper's 
Adm'r.  v.  Commonwealth  (1917),  121  Va.  338,  14  Va.  Ap.  277. 

As  to  commercial  domicile  as  distinguished  from  civil  or  personal 
domicile,  see  the  note,  post,  428. 

Aerial  Jurisdiction. — A  new  topic  in  international  law  which  the 
progress  of  recent  invention  has  made  of  much  importance  is  aerial 
jurisdiction.  At  least  as  far  back  as  the  reign  of  Edward  I,  1272-1307, 
the  ownership  of  land  has  been  held  in  England  to  extend  to  an 
indefinite  distance  both  upward  and  downward  in  accordance  with  the 
maxim  Cujus  est  solum  ejus  usque  ad  coelum  et  ad  inferos,  Bury  v. 
Pope  (1588),  Croke,  Elizabeth,  118.  In  Pickering  v.  Rudd  (1815),  4 
Campbell,  219,  Lord  Ellenborough  expressed  some  doubt  as  to  whether 
this  principle  still  obtained.  "It  would  follow,"  he  said,  "that  an 
aeronaut  is  liable  to  an  action  of  trespass  quare  clausum  fregit  at  the 
suit  of  the  occupier  of  every  field  over  which  his  balloon  passes  in 
the  course  of  his  voyage."  Later  judges,  however,  have  not  allowed 
themselves  to  be  frightened  away  from  what  they  regard  as  an  estab- 


138  JURISDICTION. 

lished  rule  by  the  prospect  of  undesirable  consequences,  and  the  rule 
has  been  applied  in  numerous  cases,  e.  g.  Corbett  v.  Hill  (1870), 
L.  R.  9  Eq.  671;  Finchley  Electric  Light  Co.  v.  Finchley  Urban  Coun- 
cil (1903),  L.  R.  1  Ch.  Div.  437.  It  has  also  been  recognized  by  many 
American  courts.  See  Murphy  v.  Bolger  Brothers  (1888),  60  Vt.  723; 
Hannabalson  v.  Sessions  (1902),  116  Iowa,  457;  Puoroto  v.  Chieppa 
(1905),  78  Conn.  401;  Butler  v.  Frontier  Telephone  Co.  (1906),  186 
N.  Y.  486.  Since  the  air  space  is  treated  as  part  of  the  subjacent 
land,  any  unpermitted  intrusion  therein  is  a  trespass,  Guille  v.  Swan 
(1822),  19  Johnson  (N.  Y.),  381;  Esty  v.  Baker  (1860),  48  Maine, 
495;  Ellis  v.  Loftus  Iron  Co.  (1874),  L.  R.  10  C.  P.  10. 

The  rule  of  the  English  common  law  as  to  the  ownership  of  land  up 
to  the  sky  became  established  before  the  advent  of  the  dirigible  air- 
ship and  the  wireless  telegraph,  when  there  was  no  effective  means  of 
occupying  the  adjacent  air  space  except  by  structures  resting  upon  the 
earth.  If  that  rule  is  to  be  continued,  the  practical  difficulty  sug- 
gested a  hundred  years  ago  by  Lord  Ellenborough,  namely  that  every 
aeronaut  who  passes  over  a  field  becomes  a  trespasser  therein,  will 
operate  as  a  serious  handicap  to  the  development  of  the  usefulness 
of  air  craft.  On  the  other  hand  the  dirigible  airship  now  makes  it 
easy  to  invade  the  privacy  of  the  occupant  of  the  land  to  an  extent 
never  before  possible,  and  necessarily  endangers  his  physical  safety 
by  objects  falling  from  air  craft  or  by  the  falling  of  the  air  craft 
themselves.  Here  is  a  conflict  of  interests  which  in  Anglo-American 
jurisdictions  has  not  yet  been  reconciled.  In  other  jurisdictions  there 
is  a  widespread  recognition  of  rights  in  the  air  in  derogation  of  the 
rights  of  the  subjacent  proprietor.  The  Japanese  Civil  Code,  sec.  207, 
provides: 

The  ownership  of  land,  subject  to  restrictions  imposed  by 
law  or  regulations,  extends  above  and  below  the  surface. 

Provisions  of  a  similar  kind  are  found  in  the  Civil  Codes  of  France, 
.Holland,  Germany,  Austria,  Italy,  Switzerland,  Spain  and  Portugal. 

In  international  law  the  question  of  aerial  jurisdiction  is  as  yet 
without  authoritative  determination.  Among  publicists  the  great 
weight  of  authority  is  in  favor  of  the  opinion  that  whatever  the  rights 
of  a  private  owner  of  land  in  the  air  space  above  his  land  may  be, 
a  state  must  possess  the  same  jurisdiction  over  the  air  space  above 
its  territory  that  it  possesses  over  the  territory  itself.  To  admit 
the  contrary  would  subject  the  state  to  dangers  that  could  not  be 
tolerated  and  would  make  impossible  the  enforcement  of  some  of  its 
laws.  During  the  Great  War  the  belligerents  quite  commonly  as- 
sumed control  of  the  air  space  above  their  territories  and  regulated 
its  use.  As  a  war  measure,  President  Wilson,  by  his  proclamation 
of  Feb.  28,  1918,  required  that  civilian  aircraft  should  obtain  a  license 
in  order  to  fly  in  any  zone  of  war-like  operations  or  preparation, 
and  declared  "the  whole  of  the  United  States  and  its  territorial  waters 
and  of  the  insular  possessions  and  the  Panama/  Canal  Zone"  to  be 
included  in  that  description.  The  advance  made  in  aeronautics  during 
the  war  emphasizes  the  need  of  regulation  not  only  for  purposes  of 
defense  but  also  in  order  to  promote  the  commercial  use  of  aircraft. 


NOTE.  139 

The  subject  will  be  of  particular  interest  to  such  states  as  Switzer- 
land, Czecho-Slovakia  and  Bolivia,  which  have  no  sea  coast. 

One  of  the  important  by-products  of  the  Peace  Conference  of  1918- 
1919  was  the  signature  by  some  of  the  Allied  Powers  in  October,  1919, 
of  the  International  Flying  Convention.  This  agreement  is  based 
on  the  principle  that  each  state  possesses  exclusive  sovereignty  of  all 
space  above  its  territories,  but  is  under  obligation  to  permit  its 
innocent  use  in  time  of  peace  by  citizens  of  all  the  signatory  powers, 
Senate  Doc.  No.  91,  66th  Congress,  1st  Session;  Harvard  Law  Review, 
XXXIII,  23. 

If  a  state  may  regulate  the  use  of  its  air  space  by  flying  craft,  it 
may  also  regulate  its  use  for  the  transmission  of  radio  messages. 
See  the  radio  convention  adopted  at  London  in  1912  in  Charles, 
Treaties  and  Conventions,  I,  185. 

For  discussions  of  aerial  jurisdiction  from  the  standpoint  of  inter- 
national law,  see  Hazeltine,  The  Law  of  the  Air;  Sir  H.  Erie  Richards, 
Sovereignty  Over  the  Air;  Nijeholt,  Air  Sovereignty;  Meili,  Das  draht- 
lose  Telegraphic;  Spaight,  Aircraft  in  War  and  Aircraft  in  Peace  and 
the  Law;  Fauchille,  Le  Domain  Aerien  et  le  Regime  Juridique  des 
Aerostats;  La  Revue  Juridque  Internationale  de  la  Locomotion  Aer- 
ienne,  four  volumes;  International  Law  Situations,  1901,  138  (wire- 
less telegraph);  Ib.  1912,  56  (Aircraft  in  war);  Hershey,  Essentials, 
chs.  xv  and  xxviii;  Phillipson,  Two  Studies  in  International  Law,  104; 
Phillipson,  International  Law  and  the  Great  War,  314;  Wilson,  Hand- 
book, 87-90,  120-124;  Hyde,  I,  324;  Bonfils  (Fauchille),  sec.  5312;  de 
Montmorency,  "Air  Space  Above  Territorial  Waters,"  Journal  of  So- 
ciety of  Comparative  Legislation  (26.  series),  XVII,  172;  Hazeltine, 
"The  Law  of  Civil  Aerial  Transport,"  Ib.  (3d  series),  I,  76,  and 
"International  Air  Law  in  Time  of  Peace,"  International  Law  Asso- 
ciation, Twenty-ninth  Report,  387;  "Report  of  the  Aerial  Law  Com- 
mittee," Ib.  Reports  for  1913-15,  218;  Zollmann,  "Air  Space  Rights," 
American  Law  Review,  LIII,  711,  and  "Liability  of  Aircraft,"  Ib.  LIII, 
879;  Bellot,  "Sovereignty  of  the  Air,"  International  Law  Notes,  III, 
133;  Baldwin,  "The  Law  of  the  Air-Ship,"  Am.  Jour.  Int.  Law,  IV, 
95;  Kuhn,  "The  Beginnings  of  an  Aerial  Law,"  Ib.  IV,  109,  and  "Inter- 
national Aerial  Navigation  and  the  Peace  Conference,"  Ib.  XIV,  369; 
Lee,  "Sovereignty  of  the  Air,"  Ib.  VII,  470,  and  "The  International 
Flying  Convention,"  Harvard  Law  Review,  XXXIII,  23;  Wilson,  "Aerial 
Jurisdiction,"  Am.  Pol.  Sci.  Rev.,  V,  171;  "Trespass  by  Airplane,"  Har- 
vard Law  Review,  XXXII,  569.  For  a  valuable  judicial  discussion  of 
aerial  jurisdiction  for  police  purposes,  see  the  opinion  of  Mr.  Jus- 
tice Holmes  in  Georgia  v.  Tennessee  Copper  Co.  (1907),  206  U.  S.  230. 


140  JURISDICTION. 

SECTION  2.    JURISDICTION  OVER  BOUNDARY  RIVERS. 
LOUISIANA  v.  MISSISSIPPI. 

SUPREME  COUBT  OF  THE  UNITED  STATES.    1906. 
202  U.  S.  1. 

Original.    In  equity. 

The  State  of  Louisiana  by  leave  of  court  filed  her  bill  against 
the  State  of  Mississippi,  October  27,  1902,  to  obtain  a  decree 
determining  a  boundary  line  between  the  two  States  and  requir- 
ing the  State  of  Mississippi  to  recognize  and  observe  the  line  so 
determined.  .  .  . 

MR.  CHIEF  JUSTICE  FULLER  .  .  .  delivered  the  opinion  of 
the  court.  .  .  . 

The  State  of  Louisiana  was  admitted  into  the  Union  by  the 
act  of  Congress  approved  April  6,  1812,  2  Stat.  701,  c.  50,  which 
commenced  as  follows: 

"Whereas,  the  representatives  of  the  people  of  all  that  part 
of  the  territory  or  country  ceded  under  the  name  of  'Louisiana' 
by  the  treaty  at  Paris  on  the  thirtieth  day  of  April,  one  thou- 
sand eight  hundred  and  three,  between  the  United  States  and 
France,  contained  within  the  following  limits,  that  is  to  say : 
Beginning  at  the  mouth  of  the  river  Sabine ;  thence,  by  a  line  to 
be  drawn  along  the  middle  of  said  river,  including  all  islands, 
to  the  thirty-second  degree  of  latitude;  thence  due  north  to  the 
northernmost  part  of  the  thirty-third  degree  of  north  latitude; 
thence,  down  the  said  parallel  of  latitude  to  the  river  Mississippi ; 
thence,  down  the  said  river,  to  the  river  Iberville;  and  from 
thence,  along  the  middle  of  the  said  river,  and  Lakes  Maurepas 
and  Pontchartrain,  to  the  Gulf  of  Mexico;  thence,  bounded  by 
the  said  Gulf,  to  the  place  of  beginning,  including  all  islands 
within  three  leagues  of  the  coast ; "  .  .  . 

If  the  doctrine  of  the  thalweg  is  applicable,  the  correct  bound- 
ary line  separating  Louisiana  from  Mississippi  in  these  waters 
is  the  deep  water  channel. 

The  term  "thalweg"  is  commonly  used  by  writers  on  inter- 
national law  in  definition  of  water  boundaries  between  States, 
meaning  the  middle  or  deepest  or  most  navigable  channel.  And 
while  often  styled  "fairway"  or  "midway"  or  "main  channel," 
the  word  itself  has  been  taken  over  into  various  languages. 


LOUISIANA  v.  MISSISSIPPI.  141 

Thus  in  the  treaty  of  Luneville,  February  9,  1801,  we  find  "le 
Thalweg  de  1'Adige,"  "le  Thalweg  du  Rhin,"  and  it  is  sim- 
ilarly used  in  English  treaties  and  decisions,  and  the  books  of 
publicists  in  every  tongue. 

In  Iowa  v.  Illinois,  147  U.  S.  1,  the  rule  of  the  thalweg  was 
stated  and  applied.  The  controversy  between  the  States  of  Iowa 
and  Illinois  on  the  Mississippi  river,  which  flowed  between  them, 
was  as  to  the  line  which  separated  "the  jurisdiction  of  the  two 
States  for  the  purposes  of  taxation  and  other  purposes  of  gov- 
ernment." Iowa  contended  that  the  boundary  line  was  the 
middle  of  the  main  body  of  the  river,  without  regard  to  the 
"steamboat  channel"  or  deepest  part  of  the  stream.  Illinois 
claimed  that  its  jurisdiction  extended  to  the  channel  upon  which 
commerce  on  the  river  by  steamboats  or  other  vessels  was  usual- 
ly conducted.  This  court  held  that  the  true  line  in  a  navigable 
river  between  States  is  the  middle  of  the  main  channel  of  the 
river. 

Mr.  Justice  Field,  delivering  the  opinion  of  the  court,  said: 

"When  a  navigable  river  constitutes  the  boundary  between 
two  independent  States,  the  line  defining  the  point  at  which  the 
jurisdiction  of  the  two  separates  is  well  established  to  be  the 
middle  of  the  main  channel  of  the  stream.  The  interest  of  each 
State  in  the  navigation  of  the  river  admits  of  no  other  line.  The 
preservation  by  each  of  its  equal  right  in  the  navigation  of  the 
stream  is  the  subject  of  paramount  interest.  It  is,  therefore, 
laid  down  in  all  the  recognized  treatises  on  international  law  of 
modern  times  that  the  middle  of  the  channel  of  the  stream 
marks  the  true  boundary  between  the  adjoining  States  up  to 
which  each  State  will  on  its  side  exercise  jurisdiction.  In  inter- 
national law,  therefore,  and  by  the  usage  of  European  nations, 
the  term  '  middle  of  the  stream, '  as  applied  to  a  navigable  river, 
is  the  same  as  the  middle  of  the  channel  of  such  stream,  and  in 
that  sense  the  terms  are  used  in  the  treaty  of  peace  between 
Great  Britain,  France,  and  Spain,  concluded  at  Paris  in  1763. 
By  the  language,  'a  line  drawn  along  the  middle  of  the  river 
Mississippi  from  its  source  to  the  river  Iberville, '  as  there  used, 
is  meant  along  the  middle  of  the  channel  of  the  river  Missis- 
sippi. ' ' 

This  judgment  related  to  navigable  rivers.  But  we  are  of 
opinion  that,  on  occasion,  the  principle  of  the  thalweg  is  ap- 
plicable, in  respect  of  water  boundaries,  to  sounds,  bays,  straits, 
gulfs,  estuaries  and  other  arms  of  the  sea. 


142  JURISDICTION. 

As  to  boundary  lakes  and  landlocked  seas,  where  there  is  no 
necessary  track  of  navigation,  the  line  of  demarcation  is  drawn 
in  the  middle,  and  this  is  true  of  narrow  straits  separating  the 
lands  of  two  different  States;  but  whenever  there  is  a  deep 
water  sailing  channel  therein,  it  is  thought  by  the  publicists  that 
the  rule  of  the  thalweg  applies.  1  Martens  (F.  de),  2d  ed.  134; 
Hall,  sec.  38;  Bluntschli,  5th  ed.  sees.  298,  299;  1  Oppenheim, 
254,  255. 

Thus  Martens  writes:  "What  we  have  said  in  regard  to 
rivers  and  lakes  is  equally  applicable  to  the  straits  or  gulfs  of 
the  sea,  especially  those  which  do  not  exceed  the  ordinary  width 
of  rivers  or  double  the  distance  that  a  cannon  can  carry." 

So  Pradier  Fodere  says  (Vol.  11,  p.  202),  that  as  to  lakes,  "in 
communication  with  or  connected  with  the  sea,  they  ought  to  be 
considered  under  the  same  rules  as  international  rivers. ' ' 

The  same  view  is  confirmed  by  decisions  of  this  court  and  of 
many  arbitral  tribunals. 

In  Devoe  Manufacturing  Company,  108  U.  S.  401,  the  ques- 
tion at  issue  was  in  regard  to  the  boundary  line  between  New 
York  and  New  Jersey  under  an  agreement  between  the  two 
States.  The  jurisdiction  of  the  State  of  New  Jersey  was  claimed 
"to  extend  down  to  the  bay  of  New  York,  and  to  the  channel 
midway  of  said  bay,"  and  this  court  sustained  the  claim.  See 
Hamburg  American  Steamship  Company  v.  Grube,  196  U.  S. 
407. 

In  the  San  Juan  Water  Boundary  controversy  between  the 
United  States  and  Great  Britain,  Emperor  William  I  gave  the 
award  in  favor  of  the  United  States,  October  21,  1871,  by  de- 
ciding "that  the  boundary  line  between  the  territory  of  Her 
Brittanic  Majesty  and  the  United  States  should  be  drawn 
through  the  Haro  Channel;"  and  it  is  apparent  that  the  deci- 
sion was  based  on  the  deep  channel  theory  as  applicable  to 
sounds  and  arms  of  the  sea,  such  as  the  straits  of  San  Juan  de 
Fuca ;  indeed  in  a  subsequent  definition  of  the  boundary,  signed 
by  the  Secretary  of  State,  the  British  Minister,  and  the  British 
representative,  the  boundary  line  was  said  to  be  prolonged  until 
it  "reaches  the  center  of  the  fairway  of  the  Straits  of  San  Juan 
de  Fuca."  The  fairway  was  the  equivalent  of  the  thalweg. 

Again,  in  fixing  the  boundary  line  of  the  Detroit  river,  under 
the  sixth  and  seventh  articles  of  the  treaty  of  Ghent,  the  deep 
water  channel  was  adopted,  giving  Belle  Isle  to  the  United 
States  as  lying  north  of  that  channel. 


ARKANSAS  v.  TENNESSEE.  143 

So  in  the  Alaskan  Boundary  case,  the  majority  of  the  arbitra- 
tion tribunal,  made  up  of  Baron  Alverstone,  Lord  Chief  Justice 
of  England,  Mr.  Secretary  Root,  and  Senators  Lodge  and  Tur- 
ner, held  that  the  middle  of  the  Portland  Channel  was  the  prop- 
er boundary  line  and  included  Wales  Island,  to  the  north  of 
which  the  channel  passed.  This  sustained  the  American  conten- 
tion in  regard  to  the  thalweg  and  the  island  lying  south  of 
it.  ... 

In  such  circumstances  as  exist  in  the  present  case,  we  perceive 
no  reason  for  declining  to  apply  the  rule  of  the  thalweg  in  de- 
termining the  boundary.  .  .  . 

Our  conclusion  is  that  complainant  is  entitled  to  the  relief 
sought. 

Decree  accordingly. 


STATE  OF  ARKANSAS  v.  STATE  OF  TENNESSEE. 

SUPREME  COURT  OF  THE  UNITED  STATES.     1918. 
246  U.  S.  158. 

This  is  an  'original  suit  in  equity  brought  by  the  State  of 
Arkansas  against  the  State  of  Tennessee  for  the  purpose  of  de- 
termining the  location  of  the  boundary  line  between  those  States 
along  that  portion  of  the  bed  of  the  Mississippi  River  that  was 
left  dry  as  the  result  of  an  avulsion  whi^ch  occurred  March  7, 
1876,  when  a  new  channel  was  formed  known  as  the  "Centen- 
nial Cut-off."  .  .  . 

[In  the  Treaty  of  Paris  of  1763  and  in  the  Treaty  of  Peace 
between  Great  Britain  and  the  United  States,  1783,  the  bound- 
ary between  the  territories  on  opposite  sides  of  the  Mississippi 
is  declared  to  be  a  line  drawn  along  the  middle  of  the  Missis- 
sippi. In  the  treaty  by  which  Louisiana  was  ceded  to  the  United 
States  the  boundary  line  was  declared  to  be  "the  middle  of  the 
main  channel  of  the  said  river."  Evidence  was  offered  showing 
the  location  of  this  line  in  1823.] 

On  March  7,  1876,  the  river  suddenly  and  with  great  violence, 
within  about  thirty  hours,  made  for  itself  a  new  channel  directly 
across  the  neck  opposite  the  apex  of  Dean's  Island,  so  that  the 
old  channel  around  the  bend  of  the  elbow  (a  distance  of  fifteen 
to  twenty  miles)  was  abandoned  by  the  current,  and  although 


144  JURISDICTION. 

it  remained  for  a  few  years  covered  with  dead  water  it  was  no 
longer  navigable  except  in  times  of  high  water  for  small  boats, 
and  this  continued  only  for  a  short  time,  since  the  old  bed  im- 
mediately began  to  fill  with  sand,  sediment,  and  alluvial  de- 
posits. In  the  course  of  time  it  became  dry  land  suitable  for 
cultivation  and  to  a  considerable  extent  covered  with  timber. 
The  new  channel  is  called,  from  the  year  in  which  it  originated, 
the  "Centennial  Cut-Off,"  and  the  land  that  it  separated  from 
the  Tennessee  mainland  goes  by  the  name  of  "Centennial 
Island."  .  .  . 

The  following  questions  are  submitted  for  the  determination 
of  this  court : 

(1)  Arakansas  contends  that  the  true  boundary  line  between 
the  States  (aside  from  the  question  of  the  avulsion  of  1876)  is 
the  middle  of  the  river  at  low  water,  that  is,  the  middle  of  the 
channel  of  navigation ;  whereas  Tennessee  contends  that  the  true 
boundary  is  a  line  equidistant  from  the  well-defined  banks  at 
a  normal  stage  of  the  river. 

(2)  Arkansas  contends  that  by  the  avulsion  of  1876  the 
boundary  line  between  the  States  was  unaffected,  and  remained 
in  the  middle  of  the  river  bed  which  was  by  the  avulsion  aban- 
doned;    .     .     .     whereas  Tennessee  contends     .     .     .     that  the 
effect  of  the  avulsion  was  to  press  back  the  line  between  the  two 
States  to  the  middle  of  the  old  channel  as  it  ran  previous  to 
the  erosions  upon  the  Tennessee  banks  that  occurred  between 
1823  and  1876. 

[On  the  first  question  the  court  sustained  the  contention  of 
Arkansas.  Only  so  much  of  the  opinion  is  here  given  as  relates 
to  the  second  question.] 

MR.  JUSTICE  PITNEY  .  .  .  delivered  the  opinion  of  the 
court.  .  .  . 

The  next  and  perhaps  the  most  important  question  is  as  to 
the  effect  of  the  sudden  and  violent  change  in  the  channel  of 
the  river  that  occurred  in  the  year  1876,  and  which  both  parties 
properly  treat  as  a  true  and  typical  avulsion.  It  is  settled  be- 
yond the  possibility  of  dispute  that  where  running  streams  are 
the  boundaries  between  States,  the  same  rule  applies  as  between 
private  proprietors,  namely,  that  when  the  bed  and  channel 
are  changed  by  the  natural  and  gradual  processes  known  as 
erosion  and  accretion,  the  boundary  follows  the  varying  course 
of  the  stream;  while  if  the  stream  from  any  cause,  natural  or 


AEKANSAS  v.  TENNESSEE.  145 

artificial,  suddenly  leaves  its  old  bed  and  forms  a  new  one,  by 
the  process  known  as  an  avulsion,  the  resulting  change  of  chan- 
nel works  no  change  of  boundary,  which  remains  in  the  middle 
of  the  old  channel,  although  no  water  may  be  flowing  in  it,  and 
irrespective  of  subsequent  changes  in  the  new  channel.  New 
Orleans  v.  United  States,  10  Pet.  662,  717;  Jefferis  v.  East 
Omaha  Land  Co.,  134  U.  S.  178,  189;  Nebraska  v.  Iowa,  143 
U.  S.  359,  361,  367,  370;  Missouri  v.  Nebraska,  196  U.  S.  23, 
34-36. 

There  is  controversy  with  respect  to  the  application  of  the 
foregoing  rule  to  the  particular  circumstances  of  this  case.  It 
is  insisted  in  behalf  of  the  State  of  Tennessee  that  since  the  rule 
of  the  thalweg  derives  its  origin  from  the  equal  rights  of  the 
respective  States  in  the  navigation  of  the  river,  the  reason  for 
the  rule  and  therefore  the  rule  itself  ceases  when  naviga- 
tion has  been  rendered  impossible  by  the  abandonment  of  a  por- 
tion of  the  river  bed  as  the  result  of  an  avulsion.  In  support 
of  this  contention  we  are  referred  to  some  expressions  of  Vattel, 
Almeda,  Moore,  and  other  writers ;  but  we  deem  them  inconclu- 
sive, and  are  of  the  opinion,  on  the  contrary,  that  the  conten- 
tion runs  counter  to  the  settled  rule  and  is  inconsistent  with  the 
declarations  of  this  court,  in  Nebraska  v.  Iowa,  143  U.  S.  359, 
367,  that  "avulsion  would  establish  a  fixed  boundary,  to  wit: 
the  centre  of  the  abandoned  channel,"  or,  as  it  is  expressed  on 
page  370,  "the  boundary  was  not  changed,  and  it  remained  as 
it  was  prior  to  the  avulsion,  the  centre  line  of  the  old  channel," 
and  in  Missouri  v.  Nebraska,  196  U.  S.  23,  36,  that  the  boundary 
line  "must  be  taken  to  be  the  middle  of  the  channel  of  the  river 
as  it  was  prior  to  such  avulsion. ' ' 

It  is  contended,  further,  that  since  the  avulsion  of  1876  caused 
the  old  river  bed  to  dry  up,  what  is  called  "the  doctrine  of  the 
submergence  and  reappearance  of  land"  must  be  applied,  so  as 
to  establish  the  ancient  boundary  as  it  existed  at  the  time  of 
the  earliest  record,  in  this  case  the  year  1823,  with  the  effect  of 
eliminating  any  shifting  of  the  river  bed  that  resulted  from  the 
erosions  and  accretions  of  the  half  century  preceding  the 
avulsion. 

This  contention  is  rested  chiefly  upon  a  quotation  from  Sir 
Matthew  Hale,  De  Jure  Maris,  c.  4:  "If  a  subject  hath  land 
adjoining  the  sea,  and  the  violence  of  the  sea  swallow  it  up, 
but  so  that  yet  there  be  reasonable  marks  to  continue  the  notice 
of  it;  or  though  the  marks  be  defaced;  yet  if  by  situation  and 


146  JURISDICTION. 

extent  of  quantity,  and  bounding  upon  the  firm  land,  the  same 
can  be  known,  though  the  sea  leave  this  land  again,  or  it  be  by 
art  or  industry  regained,  the  subject  doth  not  lose  his  propri- 
ety; and  accordingly  it  was  held  by  Cooke  and  Foster,  M.  7 
Jac.  C.  B.,  though  the  inundation  continue  forty  years."  (1 
Hargraves'  Law  Tracts,  15;  Note  to  Ex  parte  Jennings,  6  Cow. 
542.)  To  the  same  effect,  2  Roll.  Abr.  168,  1,  48;  7  Comyns' 
Dig.,  tit.  Prerogative,  D.  61,  62;  5  Bacon's  Abr.,  tit.  Preroga- 
tive, B.  1.  A  reference  to  the  context  shows  that  the  portion 
quoted  is  a  statement  of  one  of  several  exceptions  to  the  general 
rule  that  any  increase  of  land  per  relictionem,  or  sudden  reces- 
sion of  the  sea,  belonged  of  common  right  to  the  King  as  a  part 
of  his  prerogative.  It  amounts  to  no  more  than  saying  that 
where  the  reliction  did  but  restore  that  which  before  had  been 
private  property  and  had  been  lost  through  the  violence  of  the 
sea,  the  private  right  should  be  restored  if  the  land  is  capable 
of  identification.  Such  a  case  was  Mulry  v.  Norton,  100  N.  Y. 
424,  the  true  scope  of  which  decision  was  pointed  out  in  In  re 
City  of  Buffalo,  206  N.  Y.  319,  326,  327.  But  this  doctrine  has 
no  proper  bearing  upon  the  rule  we  have  stated  with  reference 
to  boundary  streams.  Certainly  it  cannot  be  regarded  as  having 
the  effect  of  carving  out  an  exception  to  the  rule  that  where 
the  course  of  the  stream  changes  through  the  operation  of  the 
natural  and  gradual  processes  of  erosion  and  accretion,  the 
boundary  follows  the  stream;  while  if  the  stream  leaves 
its  former  bed  and  establishes  a  new  one  as  the  result  of 
an  avulsion,  the  boundary  remains  in  the  middle  of  the  former 
channel.  An  avulsion  has  this  effect,  whether  it  results  in  the 
drying  up  of  the  old  channel  or  not.  So  long  as  that  channel 
remains  a  running  stream,  the  boundary  marked  by  it  is  still 
subject  to  be  changed  by  erosion  and  accretion;  but  when  the 
water  becomes  stagnant,  the  effect  of  these  processes  is  at  an 
end;  the  boundary  then  becomes  fixed  in  the  middle  of  the 
channel  as  we  have  defined  it,  and  the  gradual  filling  up  of  the 
bed  that  ensues  is  not  to  be  treated  as  an  accretion  to  the  shores 
but  as  an  ultimate  effect  of  the  avulsion.  The  emergence  of  the 
land,  however,  may  or  may  not  follow,  and  it  ought  not  in  rea- 
son to  have  any  controlling  effect  upon  the  location  of  the  bound- 
ary line  in  the  old  channel.  To  give  to  it  such  an  effect  is, 
we  think,  to  misapply  the  rule  quoted  from  Sir  Matthew 
Hale. 


NOTE.  147 

Upon  the  whole  case  we  conclude  that  the  questions  submitted 
for  our  determination  are  to  be  answered  as  follows : 

(1)  The  true  boundary  line  between  the  States,  aside  from 
the  question  of  the  avulsion  of  1876,  is  the  middle  of  the  main 
channel  of  navigation  as  it  existed  at  the  Treaty  of  Peace  con- 
cluded between  the  United  States  and  Great  Britain  in  1783, 
subject  to  such  changes  as  have  occurred  since  that  time  through 
natural  and  gradual  processes. 

(2)  By  the  avulsion  of  1876  the  boundary  line  between  the 
States  was  unaffected,  and  remained  in  the  middle  of  the  former 
main  channel  of  navigation,  as  above  defined. 

(3)  The  boundary  line  should  now  be  located  according  to 
the  middle  of  that  channel  as  it  was  at  the  time  the  current 
ceased  to  flow  therein  as  a  result  of  the  avulsion  of  1876. 

(4)  A  commission  consisting  of  three  competent  persons,  to 
be  named  by  the  court  upon  the  suggestion  of  counsel,  will  be 
appointed  to  run,  locate,  and  designate  the  boundary  line  be- 
tween the  States  at  the  place  in  question  in  accordance  with  the 
above  principles. 

(5)  The  nature  and  extent  of  the  erosions  and  accretions 
that  occurred  in  the  old  channel  prior  to  its  abandonment  by  the 
current  as  a  result  of  the  avulsion  of  1876,  and  the  question 
whether  it  is  practicable  now  to  locate  accurately  the  line  of 
the  river  as  it  then  ran,  will  be  referred  to  said  commission, 
subject  to  a  review  of  its  decision  by  this  court  if  need  be. 

The  parties  may  submit  the  form  of  an  interlocutory  decree 
to  carry  into  effect  the  above  conclusion. 

NOTE. — See  also  Handly's  Lessee  v.  Anthony  (1820),  5  Wheaton, 
374;  Howard  v.  Ingersoll  (1852),  13  Howard,  381;  Jones  v.  Soulard 
(1861),  24  Howard,  41;  Indiana  v.  Kentucky  (1890),  136  U.  S.  479;  Keo- 
kuk  &  Hamilton  Bridge  Co.  v.  Illinois  (1900),  175  U.  S.  626;  Morgan  v. 
Reading  (1844),  3  Sm.  &  Marsh  (Miss.)  366;  St.  Joseph  &  G.  I.  Ry. 
v.  Devereaux  (1889),  41  Fed.  14.  If  a  river  possesses  more  than  one 
channel,  the  thalweg  is  the  one  habitually  followed  by  vessels  of 
the  largest  tonnage  even  though  it  is  not  the  deepest,  Minnesota  v. 
Wisconsin  (1920),  252  U.  S.  273.  There  is  a  full  citation  of  authori- 
ties in  the  brief  of  complainant's  counsel  in  Louisiana  v.  Mississippi 
(1906),  202  U.  S.  1,  25.  See  also  Bonfils  (Fauchille),  sec.  520;  Hyde, 
I,  243;  Moore,  Digest,  I,  616. 

Should  accretion,  erosion  or  other  natural  causes  produce  gradual 
and  imperceptible  changes  in  the  main  channel  of  a  stream,  the 
boundary  line  shifts  accordingly,  New  Orleans  v.  United  States  (1836), 
10  Peters,  662,  717;  Nebraska  v.  Iowa  (1892),  143  U.  S.  359;  Phila- 
delphia Company  v.  Stimson  (1912),  223  U.  S.  605,  625;  McBalne  v. 


148  JURISDICTION. 

Johnson  (1900),  155  Mo.  191;  Buttenuth  v.  St.  Louis  Bridge  Co. 
(1888),  123  111.  535;  Bellefontaine  Improvement  Co.  v.  Niedring- 
haus  (1899),  181  111.  426;  but  if  the  change  is  sudden  the  bound- 
ary continues  where  it  was,  Cooley  v.  Golden  (1893),  52  Mo.  App.  229; 
Missouri  v.  Nebraska  (1904),  196  U.  S.  23.  As  to  the  consequences 
following  the  recession  of  a  lake,  see  Murray  v.  Sermon  (1820),  ] 
Hawks  (N.  C.),  56.  The  development  of  a  new  and  more  important 
channel,  the  first  one  still  continuing  in  its  old  location,  does  not 
affect  the  boundary,  Washington  v.  Oregon  (1908),  211  U.  S.  127,  same 
case  on  re-hearing,  (1909),  214  U.  S.  205.  If  an  island  should  be 
formed  suddenly  in  a  river,  the  riparian  sovereigns  might  fairly  claim 
an  equal  division  thereof,  but  if  formed  gradually  it  is  the  property 
of  the  state  in  whose  waters  it  lies,  St.  Louis  v.  Rutz  (1891),  138 
U.  S.  226.  When  a  river  forms  a  boundary  between  two  countries  and 
the  only  access  to  adjacent  territories  is  through  that  river,  the 
waters  of  the  whole  must  be  considered  as  common  to  both  nations 
for  all  purposes  of  navigation  as  a  common  highway,  The  Twee 
Gebroeders  (1800),  3  C.  Robinson,  336;  The  Apollon  (1824),  9  Wheaton, 
362.  The  same  principle  applies  to  lakes  which  are  boundaries,  United 
States  v.  Rodgers  (1893),  150  U.  S.  249.  Where  a  river  forms  the 
boundary  between  two  States  of  the  American  Union,  Congress  some- 
times gives  to  them  concurrent  jurisdiction  over  the  entire  river, 
Wedding  v.  Meyler  (1904),  192  U.  S.  573,  Nielsen  v.  Oregon  (1909), 
212  U.  S.  315,  and  an  excellent  note,  "Concurrent  Jurisdiction  of 
States  over  Boundary  Waters,"  Harvard  Law  Review,  XXII,  599.  This 
is  a  revival  of  a  practice  once  common  in  Europe,  See  Nys,  Droit  In- 
ternational, I,  423,  cited  in  Hyde,  I,  243. 

On  the  status  of  such  rivers  as  the  Rhine,  the  Danube,  the  St. 
Lawrence  and  the  Amazon,  which  may  not  only  be  boundaries  but 
which  may  be  of  interest  to  several  countries  from  the  standpoint  of 
navigation,  see  Engelhardt,  Du  Regime  Conventionel  des  Fleuves  Inter- 
nationaux;  Eysinga,  Evolution  du  Droit  Fluvial  International  du 
Congres  de  Vienna  au  Traite  de  Versailles;  Kaeckenbeeck,  Interna- 
tional Rivers,  and  Ogilvie,  International  Waterways.  .  /  .  ,  .  ^/ 


SECTION  3.    JURISDICTION  OVER  MARGINAL  SEAS. 
THE  ANNA. 

HIGH  COURT  or  ADMIRALTY  OF  ENGLAND.    1805. 
5  C.  Robinson,  373. 

This  was  the  case  of  a  ship  under  American  colors,  with  a 
cargo  of  logwood,  and  about  13,000  dollars  on  board,  bound  from 
the  Spanish  main  to  New  Orleans,  and  captured  by  the  Minerva 
privateer  near  the  mouth  of  the  River  Mississippi.  A  claim  was 
given  under  the  direction  of  the  American  Ambassador  [Min- 


THE  ANNA.  1  !H 

ister]  for  the  ship  and  cargo,  "as  taken  within  the  territory  of 
the  United  States,  at  the  distance  of  a  mile  and  a  half  from  the 
western  shore  of  the  principal  entrance  of  the  Mississippi,  and 
•within  view  of  a  post  protected  by  a  gun,  and  where  is  stationed 
an  officer  of  the  United  States. "  .  .  . 

SIB  WILLIAM  SCOTT  [LORD  STOWELL]  :    .    .    . 

When  the  ship  was  brought  into  this  country,  a  claim  was 
given  of  a  grave  nature,  alledging  a  violation  of  the  territory 
of  the  United  States  of  America.  This  great  leading  fact  has 
very  properly  been  made  a  matter  of  much  discussion,  and 
charts  have  been  laid  before  the  Court  to  shew  the  place  of  cap- 
ture, though  with  different  representations  from  the  adverse 
parties.  The  capture  was  made,  it  seems,  at  the  mouth  of  the 
River  Mississippi,  and,  as  it  is  contended  in  the  claim,  within 
the  boundaries  of  the  United  States.  We  all  know  that  the  rule 
of  law  on  this  subject  is  "terrae  dominium  finitur,  ubi  finitur 
anno  rum  vis,"  and  since  the  introduction  of  fire-arms,  that  dis- 
tance has  usually  been  recognized  to  be  about  three  miles  from 
the  shore.  But  it  so  happens  in  this  case,  that  a  question  arises 
as  to  what  is  to  be  deemed  the  shore,  since  there  are  a  number 
of  little  mud  islands  composed  of  earth  and  trees  drifted  down 
by  the  River,  which  form  a  kind  of  portico  to  the  main-land.  It 
is  contended  that  these  are  not  to  be  considered  as  any  part  of 
the  territory  of  America,  that  they  are  a  sort  of  "no  mans 
land,"  not  of  consistency  enough  to  support  the  purposes  of  life, 
uninhabited,  and  resorted  to,  only,  for  shooting  and  taking  birds 
nests.  It  is  argued  that  the  line  of  territory  is  to  be  taken  only 
from  the  Balise,  which  is  a  fort  raised  on  made  land  by  the 
former  Spanish  possessors.  I  am  of  a  different  opinion;  I  think 
that  the  protection  of  territory  is  to  be  reckoned  from  these 
islands;  and  that  they  are  the  natural  appendages  of  the  coast 
on  which  they  border,  and  from  which,  indeed,  they  are  formed. 
Their  elements  are  derived  immediately  from  the  territory,  and 
on  the  principle  of  alluvium  and  increment,  on  which  so  much 
is  to  be  found  in  the  books  of  law,  Quod  vis  fluminis  de  tuo 
prcedio  detraxerit,  &  vicino  prcedio  attulerit,  palam  tuum 
remanet,  (Inst.  L.  2.  Tit.  1,  §  21),  even  if  it  had  been  carried 
over  to  an  adjoining  territory.  Consider  what  the  consequence 
would  be  if  lands  of  this  description  were  not  considered  as 
appendant  to  the  mainland,  and  as  comprized  within  the  bounds 
of  territory.  If  they  do  not  belong  to  the  United  States  of 


150  JURISDICTION. 

America,  any  other  power  might  occupy  them;  they  might  be 
embanked  and  fortified.  What  a  thorn  would  this  be  in  the 
side  of  America!  It  is  physically  possible  at  least  that  they 
might  be  so  occupied  by  European  nations,  and  then  the  com- 
mand of  the  River  would  be  no  longer  in  America,  but  in  such 
settlements.  The  possibility  of  such  a  consequence  is  enough 
to  expose  the  fallacy  of  any  arguments  that  are  addressed  to 
shew,  that  these  islands  are  not  to  be  considered  as  part  of  the 
territory  of  America.  Whether  they  are  composed  of  earth  or 
solid  rock,  will  not  vary  the  right  of  dominion,  for  the  right  of 
dominion  does  not  depend  upon  the  texture  of  the  soil. 

I  am  of  opinion  that  the  right  of  territory  is  to  be  reckoned 
from  those  islands.  That  being  established,  it  is  not  denied 
that  the  actual  capture  took  place  within  the  distance  of  three 
miles  from  the  islands,  and  at  the  very  threshold  of  the  river. 
But  it  is  said  that  the  act  of  capture  is  to  be  carried  back  to  the 
commencement  of  the  pursuit,  and  that  if  a  contest  begins  be- 
fore, it  is  lawful  for  a  belligerent  cruizer  to  follow,  and  to  seize 
his  prize  within  the  territory  of  a  neutral  State.  And  the  au- 
thority of  Bynkershoek  is  cited  on  this  point.  True  it  is,  that 
that  great  man  does  intimate  an  opinion  of  his  own  to  that 
effect;  but  with  many  qualifications,  and  as  an  opinion,  which 
he  did  not  find  to  have  been  adopted  by  any  other  writers.  I 
confess  I  should  have  been  inclined  to  have  gone  along  with 
him,  to  this  extent,  that  if  a  cruizer,  which  had  before  acted 
in  a  manner  entirely  unexceptionable,  and  free  from  all  viola- 
tion of  territory,  had  summoned  a  vessel  to  submit  to  examina- 
tion and  search,  and  that  vessel  had  fled  to  such  places  as 
these,  entirely  uninhabited,  and  the  cruizer  had  without  injury 
or  annoyance  to  any  person  whatever,  quietly  taken  possession 
of  his  prey,  it  would  be  stretching  the  point  too  hardly  against 
the  captor,  to  say  that  on  this  account  only  it  should  be  held 
an  illegal  capture.  If  nothing  objectionable  had  appeared  in 
the  conduct  of  the  captors  before,  the  mere  following  to  such  a 
place  as  this  is,  would  I  think  not  invalidate  a  seizure  other- 
wise just  and  lawful. 

But  that  brings  me  to  a  part  of  the  case,  on  which  I  am  of 
opinion  that  the  privateer  has  laid  herself  open  to  great  repre- 
hension. Captors  must  understand,  that  they  are  not  to  station 
themselves  in  the  mouth  of  a  neutral  River,  for  the  purpose  of  ex- 
ercising the  rights  of  war  from  that  River,  much  less  in  the  very 
River  itself.  It  appears  from  the  Privateer's  own  log-book  that 


MORTENSBN  v.  PETERS.  151 

this  vessel  has  done  both;  and  as  to  any  attempt  to  shelter  this 
conduct  under  the  example  of  King's  ships,  which  I  do  not 
believe,  and  which,  if  true,  would  be  no  justification  to  others, 
captors  must  I  say  be  admonished,  that  the  practice  is  altogether 
indefensible,  and  that  if  King's  ships  should  be  guilty  of  such 
misconduct,  they  would  be  as  much  subject  to  censure  as  other 
cruizers.  It  is  unnecessary  to  go  over  all  the  entries  in  the  log. 
The  captors  appear  by  their  own  description  to  have  been  stand- 
ing off  and  on,  obtaining  information  at  the  Balise,  overhauling 
vessels  in  their  course  down  the  River,  and  making  the  River 
as  much  subservient  to  the  purposes  of  war,  as  if  it  had  been  a 
river  of  their  own  country.  This  is  an  inconvenience  which  the 
States  of  America  are  called  upon  to  resist,  and  which  this  Court 
is  bound  on  every  principle  to  discourage  and  correct.  .  .  . 
The  conduct  of  the  captors  has  on  all  points  been  highly  rep- 
rehensible. Looking  to  all  the  circumstances  of  previous  miscon- 
duct, I  feel  myself  bound  to  pronounce,  that  there  has  been  a 
violation  of  territory,  and  that  as  to  the  question  of  property, 
there  was  not  sufficient  ground  of  seizure;  and  that  these  acts 
of  misconduct  have  been  further  aggravated,  by  bringing  the 
vessel  to  England,  without  any  necessity  that  can  justify  such  a 
measure.  In  such  a  case  it  would  be  falling  short  of  the  justice 
due  to  the  violated  rights  of  America,  and  to  the  individuals 
who  have  sustained  injury  by  such  misconduct,  if  I  did  not 
follow  up  the  restitution  which  has  passed  on  the  former  day, 
with  a  decree  of  costs  and  damages. 


MORTENSEN  v.  PETERS. 

HIGH  COURT  OF  JUSTICIARY  OF  SCOTLAND.     1906. 
14  Scots  Law  Times  Reports,  227. 

[The  facts  and  the  first  part  of  the  opinion  are  printed, 
ante,  29.] 

THE  LORD  JUSTICE  GENERAL.  ...  I  do  not  think  I  need 
say  anything  about  what  is  known  as  the  three-mile  limit.  It 
may  be  assumed  that  within  the  three  miles  the  territorial  sov- 
ereignty would  be  sufficient  to  cover  any  such  legislation  as  the 
present.  It  is  enough  to  say  that  that  is  not  a  proof  of  the 


152  JURISDICTION. 

counter  proposition  that  outside  the  three  miles  no  such  result 
could  be  looked  for.  The  locus,  although  outside  the  three-mile 
limit,  is  within  the  bay  known  as  the  Moray  Firth,  and  the 
Moray  Firth,  says  the  respondent,  is  intra  fauces  terrae.  Now, 
I  cannot  say  that  there  is  any  definition  of  what  fauces  terrae 
exactly  are.  But  there  are  at  least  three  points  which  go  far  to 
shew  that  this  spot  might  be  considered  as  lying  therein. 

1st.  The  dicta  of  the  Scottish  Institutional  Writers  seem  to 
show  that  it  would  be  no  usurpation,  according  to  the  law  of 
Scotland,  so  to  consider  it. 

Thus,  Stair,  II,  i.  5 :  "  The  vast  ocean  is  common  to  all  man- 
kind as  to  navigation  and  fishing,  which  are  the  only  uses 
thereof,  because  it  is  not  capable  of  bounds;  but  when  the  sea 
is  inclosed  in  bays,  creeks,  .or  otherwise  is  capable  of  any  bounds 
or  meiths  as  within  the  points  of  such  lands,  or  within  the  view 
of  such  shores,  then  it  may  become  proper,  but  with  the  reserva- 
tion of  passages  for  commerce  as  in  the  land."  And  Bell,  Pr. 
Sec.  639  :  ' '  The  Sovereign  ...  is  proprietor  of  the  narrow 
seas  within  cannon  shot  of  the  land,  and  the  firths,  gulfs,  and 
bays  around  the  Kingdom." 

2nd.  The  same  statute  puts  forward  claims  to  what  are  at 
least  analogous  places.  If  attention  is  paid  to  the  Schedule 
appended  to  section  6,  many  places  will  be  found  far  beyond 
the  three-mile  limit — e.  g.,  the  Firth  of  Clyde  near  its  mouth. 
I  am  not  ignoring  that  it  may  be  said  that  this  in  one  sense  is 
proving  idem  per  idem,  but  none  the  less,  I  do  not  think  the  fact 
can  be  ignored. 

3rd.  There  are  many  instances  to  be  found  in  decided  cases 
where  the  right  of  a  nation  to  legislate  for  waters  more  or  less 
landlocked  or  landembraced,  although  beyond  the  three-mile 
limit,  has  been  admitted.  .  .  . 

It  seems  to  me  therefore,  without  laying  down  the  proposition 
that  the  Moray  Firth  is  for  every  purpose  within  the  territorial 
sovereignty,  it  can  at  least  be  clearly  said  that  the  appellant 
cannot  make  out  his  proposition  that  it  is  inconceivable  that  the 
British  legislature  should  attempt  for  fishery  regulation  to  legis- 
late against  all  and  sundry  in  such  a  place.  And  if  that  is  so, 
then  I  revert  to  the  considerations  already  stated  which  as  a 
matter  of  construction  make  me  think  that  it  did  so  legis- 
late. .  .  . 

NOTE. — The  question  as  to  how  far  the  jurisdiction  of  a  state  may 
be  exercised  over  the  seas  adjacent  to  its  shores  may  be  approached 


NOTE.  153 

from  the  standpoint  of  the  state  whose  jurisdiction  is  in  question, 
in  which  case  the  point  is  primarily  one  of  domestic  policy  and  is 
determined  by  reference  to  the  needs  of  the  state  and  to  its  willing- 
ness to  assume  responsibility  for  the  maintenance  of  order  in  the 
waters  over  which  it  claims  jurisdiction.  It  may  also  be  approached 
from  the  standpoint  of  the  whole  society  of  nations  every  member 
of  which  has  rights  in  the  high  seas  which  are  infringed  upon  by 
every  extension  of  the  jurisdiction  of  a  littoral  state.  The  three- 
mile  rule  represents  a  compromise  between  these  conflicting  view- 
points. It  is  obvious  that  for  its  own  protection  as  well  as  for  the 
maintenance  of  international  peace  and  order,  every  riparian  state 
must  have  jurisdiction  over  a  portion  of  the  adjacent  seas.  Because 
of  this  fact  every  state  submits  to  some  derogation  from  its  own 
rights  in  the  high  seas. 

Grotius  recognized  that  a  state  has  a  right  to  control  the  sea 
adjacent  to  its  coasts,  but  the  distance  to  which  that  control  might 
extend  was  first  precisely  formulated  by  his  fellow-countryman  Bynk- 
ershoek,  who  said  in  1702,  "We  do  not  concede  dominion  of  an 
adjacent  sea  further  than  that  distance  from  the  land  from  which  it  can 
be  ruled."  In  other  words,  a  state's  control  over  the  adjacent  seas 
extends  to  the  range  of  a  cannon.  This  idea  he  embodied  in  a  phrase 
which  has  become  almost  an  aphorism, — Terrae  dominium  finitur  ubi 
finitur  armorum  vis.  The  first  government  which  adopted  this  as 
a  rule  of  international  law  seems  to  have  been  that  of  the  United 
States,  which  in  the  administration  of  President  Washington  asserted 
that  the  dominion  of  this  country  extended  one  marine  league  from 
the  shore.  Moore,  Digest,  I,  702.  This,  however,  seems  to  have  been 
set  up  as  a  minimum  claim.  In  1804,  Thomas  Jefferson,  who,  as 
Washington's  Secretary  of  State,  had  asserted  the  three-mile  rule, 
said  that  the  three-mile  maritime  jurisdiction  should  be  counted  from 
the  farthest  point  that  could  be  seen  from  land.  He  estimated  that 
this  point  was  about  25  miles  distant.  This  rule,  if  applied,  would 
give  the  United  States  jurisdiction  over  the  maritime  seas  for  a  dis- 
tance of  28  miles.  In  1805  Jefferson  went  still  further  and  claimed 
that  the  Gulf  Stream  was  the  natural  boundary  of  the  United  States. 
At  about  the  same  time,  the  three-mile  limit  was  recognized  by  Lord 
Stowell  in  The  Twee  Gebroeders  (1800),  3  C.  Robinson,  162,  and  The 
Anna  (1805),  5  Ib,  373,  and  by  Justice  Story  in  The  Ann  (1812),  1 
Gallison,  62.  See  also  United  States  v.  Grush  (1829),  5  Mason,  290, 
300,  Dunham  v.  Lamphere  (1855),  3  Gray  (Mass.),  268,  270,  and 
Bolmer  v.  Edsall  (1919),  90  N.  J.  Eq.  299,  307.  In  1818,  in  a  treaty 
between  Great  Britain  and  the  United  States,  the  three-mile  rule 
instead  of  the  cannon-shot  rule  was  embodied  for  the  first  time  in  an 
international  agreement.  Logically  the  principle  upon  which  the 
extent  of  a  state's  maritime  jurisdiction  was  measured  required  that 
such  jurisdiction  should  be  increased  automatically  as  the  range  of 
cannon  increased,  and  there  have  not  been  wanting  jurists,  e.  g., 
Professor  de  Martens,  who  have  so  argued.  But  the  practice  of 
nations  has  not  been  logical,  and  three  miles  or  a  marine  league 
still  remains  the  recognized  minimum  limit  of  a  state's  jurisdiction 


154  JURISDICTION. 

over  the  high  seas.  Some  nations  claim  more.  Norway  and  Sweden 
assert  jurisdiction  up  to  four  miles  from  their  coasts,  and  Spain  up 
to  six  miles,  while  Italy  makes  the  distance  ten  miles.  In  the  Great 
War  however  Norway  announced  that  in  view  of  the  difficulty  of 
maintaining  neutrality  in  a  zone  which  was  not  recognized  by  either 
Great  Britain  or  Germany  her  efforts  would  be  restricted  to  the 
three-mile  limit.  In  this  divergence  of  practice,  the  most  definite 
statement  that  can  be  made  is  that  a  nation's  right  to  assert  its 
jurisdiction  as  far  as  three  miles  from  its  shore  is  unquestioned. 
There  is  general  recognition  of  the  desirability  of  extending  the  width 
of  this  maritime  belt,  but  as  yet  no  agreement  has  been  reached. 
In  discussing  the  present  status  of  the  rule  the  Superior  Prize  Court 
of  Berlin  in  The  Elida  (1915),  EntscJieidungen,  9,  said: 

It  was  originally  based  upon  the  range  of  ship  and  coast 
ordnance.  It  is  true  that  this  basis  no  longer  obtains,  but 
in  this  matter  the  principle  cessante  ratione  non  cessat  lex 
ipsa,  applies,  and  however  numerous  the  various  propositions 
and  opinions  concerning  a  different  limitation  of  territorial 
waters,  yet  no  other  rule  has  met  with  the  unanimous  ap- 
proval of  maritime  states.  This  is  especially  true  of  the 
opinion  that  each  state  may,  of  its  own  volition,  extend  its 
territorial  waters  beyond  the  three-mile  limit,  which  is  recog- 
nized as  at  least  their  minimum  extent,  to  a  distance  equal  to 
a  cannon's  range.  But  in  view  of  the  range  of  modern  artil- 
lery, this  would  lead  to  absolutely  untenable  results,  and 
would  enable  individual  states  to  subject  to  their  sovereignty 
larger  areas  of  the  open  sea  whose  freedom  is  to  the  general 
interest  of  all  maritime  countries.  .  .  .  But  the  extension 
of  the  jurisdiction  of  a  state  does  not  depend  upon  its  mere 
volition,  but  upon  recognition  by  other  states.  Moreover  tacit . 
acceptance  is  not  equivalent  to  positive  approval  by  the  inter- 
national community.  And  we  must  further  take  into  account 
that  the  exercise  by  the  riparian  state  of  certain  sovereign 
functions,  such  as  the  control  of  customs  and  of  the  sanitary 
police,  beyond  the  three-mile  limit,  although  tolerated  in 
some  quarters,  is  in  no  sense  an  admission  that  such  area 
has  become  subject  to  the  jurisdiction  of  such  state.  Hence 
in  recent  treaties  signed  by  a  large  number  of  maritime 
nations,  as  for  instance  in  the  treaty  of  May  2,  1882  for  the 
policing  of  the  North  Sea  fisheries,  and  in  the  treaty  of 
October  29,  1888,  concerning  the  neutralization  of  the  Suez 
Canal,  the  three-mile  limit  was  recognized  as  binding.  Ac- 
cording to  official  information  from  the  Foreign  Office,  in  the 
second  sitting  of  the  International  Conference  for  the  Pro- 
tection of  Submarine  Cables,  held  in  Paris  October  18,  1882, 
the  German  representative,  without  encountering  any  opposi- 
tion, expressly  declared  that  territorial  waters  meant  a  zone 
of  three  nautical  miles.  According  to  similar  official  informa- 
tion, the  British  Government  in  1911,  in  connection  with 
negotiations  for  the  holding  of  a  conference  for  the  settle- 


NOTE.  155 

ment  of  the  question  of  territorial  waters,  positively  sup- 
ported the  three-mile  rule,  and  accordingly,  even  in  the  pres- 
ent war,  it  has  informed  the  Government  of  Uruguay,  through 
Admiral  Craddock,  that  it  would  not  recognize  the  claim  of 
Uruguay  and  Argentina  to  an  extension  of  their  territorial 
waters  beyond  the  three-mile  limit. 

In  The  Rossia  (1904),  2  Hurst  and  Bray,  41,  and  in  The  Michael 
(1904),  2  Ib.  82,  the  Sasebo  Prize  Court  of  Japan  declared  that  the 
marginal  jurisdiction  of  a  state  extends  only  three  miles  from  the 
shore. 

The  jurisdiction  of  a  state  over  its  marginal  waters  is  elaborately 
discussed  in  The  Queen  v.  Keyn  (1876),  L.  R.  2  Excheq.  Div.  63,  in 
which  it  was  held  that  an  English  court  had  no  jurisdiction  over  a 
crime  committed  by  a  foreigner  on  a  foreign  merchant  ship  within 
three  miles  of  the  British  coast.  This  decision  has  been  strongly 
criticised  and  the  jurisdiction  which  it  denied  was  promptly  con- 
ferred by  act  of  Parliament,  the  preamble  of  which  declared: 

Whereas  the  rightful  jurisdiction  of  Her  Majesty,  her  heirs 
and  successors,  extends  and  has  always  extended  over  the 
open  seas  adjacent  to  the  coasts  of  the  United  Kingdom  and 
of  all  other  parts  of  Her  Majesty's  dominions  to  such  a  dis- 
tance as  is  necessary  for  the  defense  and  security  of  such 
dominions,  etc. 

It  will  be  noted  that  the  principle  here  enunciated,  the  soundness 
of  which  is  unquestionable,  does  not  restrict  the  Crown's  jurisdic- 
tion to  the  three-mile  zone  but  asserts  it  "to  such  a  distance  as  is 
necessary  for  the  defense  and  security"  of  its  dominions. 

For  a  discussion  of  jurisdiction  over  straits,  see  Imperial  Japanese 
Government  v.  P.  &  O.  Steamship  Co.  [1895]  A.  C.  644,  and  The 
Bangor  [1916]  P.  181,  185. 

Whether  or  not  a  bay  opening  from  the  high  seas  shall  be  treated 
as  under  the  jurisdiction  of  the  adjacent  state  depends  not  only 
upon  the  width  of  the  opening  but  also  upon  the  physical  and  eco- 
nomic relation  of  the  bay  to  surrounding  territory.  If  the  opening 
is  not  more  than  six  miles  in  width  the  bay  is  clearly  territorial.  If 
the  opening  is  more  than  six  and  not  more  than  ten  miles  in  width,  the 
bay  will  usually  be  treated  as  closed  simply  as  a  matter  of  practical 
convenience.  If  it  were  not  so  treated,  there  would  be  a  strip  in 
the  center  so  narrow  that  it  could  hardly  be  distinguished  from 
the  territorial  waters  on  either  side  and  which  would  probably  be  a 
constant  source  of  controversy.  See  the  observations  of  John  Bassett 
Moore  in  Annuaire  de  Vlnstitute  de  Droit  International,  1894,  146. 
Some  bays,  which  are  sometimes  called  historical  as  distinguished 
from  geographical  bays,  are  treated  as  closed  because  of  their  rela- 
tion to  surrounding  territory.  The  Delaware  Bay,  which  is  fifteen 
miles  wide  at  the  entrance,  is  the  approach  to  the  important  port  of 
Philadelphia,  and  exclusive  jurisdiction  over  it  is  claimed  by  the 
United  States,  The  Grange  (1793),  1  Opinions  Att.  Gen.  32,  Moore, 
Digest,  I,  735.  The  Chesapeake  Bay,  which  is  twelve  miles  wide 


156  JURISDICTION. 

at  the  entrance,  stands  in  the  same  relation  to  Baltimore  and  is 
likewise  under  American  jurisdiction,  The  Alleganean  (1885),  Moore, 
Int.  Art.  IV,  4333,  V.  4675.  The  great  estuary  of  the  River  Plate, 
lying  between  Argentina  and  Uruguay,  naturally  falls  under  the  juris- 
diction of  those  countries,  but  since  it  is  the  approach  from  the  sea 
to  Paraguay  their  jurisdiction  must  be  limited  by  the  rights  of  that 
state.  Conception  Bay,  which  is  about  twenty  miles  in  width  at  its 
entrance  and  which  could  be  made  the  base  of  an  attack  on  St.  John, 
is  under  the  jurisdiction  of  Newfoundland,  Direct  United  States 
Cable  Co.  v.  Anglo-American  Telegraph  Co.  (1877);  L.  R.  2  App. 
Cases,  394.  The  Gulf  of  Fonseca  in  Central  America  is  the  natural 
center  for  the  development  of  the  surrounding  country  and  jurisdic- 
tion over  it  must  be  determined  largely  by  that  fact,  Republic  of 
El  Salvador  v.  Republic  of  Nicaragua  (1917),  Am.  Jour.  Int.  Law,  XI, 
674.  A  claim  to  jurisdiction  over  such  waters,  if  based  upon  reason- 
able considerations  and  if  long  continued  and  undisputed,  will  ripen 
into  a  prescriptive  right  to  sovereign  dominion.  For  a  valuable  dis- 
cussion of  the  status  of  bays  with  openings  more  than  ten  miles 
wide  see  the  dissenting  opinion  of  Dr.  Drago  in  The  Proceedings  of 
the  North  Atlantic  Coast  Fisheries  Arbitration,  I,  102.  See  also 
Regina  v.  Cunningham  (1859),  Bell,  Crown  Cases,  72  (Bristol  Chan- 
nel), Manchester  v.  Massachusetts  (1891),  139  U.  S.  240  (Buzzards 
Bay),  Mahler  v.  Norwich  &  N.  Y.  Transportation  Co.  (1866),  35  N.  Y. 
352  (Long  Island  Sound),  and  The  Washington  (1853),  Moore,  Int. 
Arb.  IV,  4342,  in  which  the  Bay  of  Fundy,  65  to  75  miles  in  width, 
was  held  to  be  part  of  the  high  seas.  In  the  case  of  The  Argus 
(1854),  Ib.  IV,  4344,  the  headland  theory  was  rejected  when  Great 
Britain  sought  to  apply  it  to  Cape  Breton  Island,  but  it  was  applied 
in  The  Queen  v.  Delepine  (1889),  3  Morris  (Newfoundland),  378.  In 
the  Behring  Sea  controversy,  which  was  submitted  to  arbitration  in 
1893,  the  United  States  contended  that  the  Behring  Sea  was  a  closed 
sea  under  the  exclusive  jurisdiction  of  the  United  States.  In  the 
opinion  of  a  distinguished  scholar  this  was  "a  new  effort  made  by 
a  great  power,  under  special  conditions,  and  at  the  instance  of  a 
powerful  corporation,  to  challenge  the  freedom  of  the  open  sea." 
Cobbett,  Cases  and  Opinions,  I,  134.  The  contention  of  the  United 
States  was  not  sustained  by  the  arbitrators.  See  Moore,  Int.  Arb. 
I,  755. 

In  the  North  Atlantic  Coast  Fisheries  Arbitration  in  1910,  one  of 
the  points  at  issue  between  Great  Britain  and  the  United  States  was 
the  interpretation  of  a  clause  of  the  treaty  of  1818  by  which  the 
United  States  gave  up  any  former  rights  of  its  citizens  to  engage  in 
the  fishing  industry  "in  or  within  three  marine  miles  of  any  of  the 
coast  bays,  creeks,  or  harbours  of  Her  Britannic  Majesty's  dominions . 
in  North  America"  not  included  in  certain  limits.  The  United  States 
contended  that  the  above  described  line  should  be  measured  from 
the  shore  and  should  follow  its  indentations.  Great  Britain  relied 
upon  the  headland  doctrine  and  argued  that  the  line  should  be  meas 
ured  from  headland  to  headland.  The  Hague  Tribunal,  one  judge  dis- 


CHURCH  v.  HUBBART.  157 

panting,   sustained  the  British   contention   and    said: 

Admittedly  the  geographical  character  of  a  bay  contains 
conditions  which  concern  the  interests  of  the  territorial  sov- 
ereign to  a  more  intimate  and  important  extent  than  do  those 
connected  with  the  open  coast.  These  conditions  of  national 
and  territorial  integrity,  of  defence,  of  commerce  and  of  in- 
dustry are  all  vitally  concerned  with  the  control  of  the  bays 
penetrating  the  national  coast  line.  This  interest  varies, 
speaking  generally,  in  proportion  to  the  penetration  inland 
of  the  bay;  but  as  no  principle  of  international  law  recognizes 
any  specified  relation  between  the  concavity  of  the  bay  and 
the  requirements  for  control  by  the  territorial  sovereignty, 
this  Tribunal  is  unable  to  qualify  by  the  application  of  any 
new  principle  its  interpretation  of  the  Treaty  of  1818  as 
excluding  bays  in  general  from  the  strict  and  systematic 
application  of  the  three  mile  rule. 

On  this  case  see  Robert  Lansing,  "The  North  Atlantic  Coast  Fish- 
eries Arbitration,"  in  Am.  Jour.  Int.  Law,  V.  1;  same  title  by  B.  M. 
Borchard  in  Col.  Law  Rev.,  XI,  1.  The  text  of  the  award  and  other 
documents  are  in  Wilson,  The  Hague  Arbitration  Cases,  134  and  in 
Scott,  The  Hague  Court  Reports,  141.  See  also  Argument  of  the  Hon- 
orable Elihu  Root  on  Behalf  of  the  United  States,  with  an  introduction 
by  J.  B.  Scott  giving  an  excellent  account  of  the  entire  controversy. 

On  the  whole  question  of  jurisdiction  over  marginal  waters  see 
Pulton,  The  Sovereignty  of  the  Sea, — a  scholarly  and  well-written 
book;  Crocker,  The  Extent  of  the  Marginal  Sea;  Sir  John  W.  Sal- 
mond,  "Territorial  Waters,"  Law  Quarterly  Revieic,  XXXIV,  235; 
Sir  Thomas  Barclay,  "Territorial  Waters,"  International  Law  Asso- 
ciation, Twenty-seventh  Report,  81;  Charteris,  "Recent  International 
Disputes  Regarding  International  Bays,"  Ib.  107,  and  "Territorial 
Jurisdiction  in  Wide  Bays,"  Ib.  Twenty  Third  Report,  103  (excep- 
tionally valuable  articles) ;  Naval  War  College,  International  Law 
Topics,  1913,  11  (an  admirable  treatment  by  Prof.  George  G.  Wilson); 
Cobbett,  Cases  and  Opinions,  I,  136;  Hyde,  I,  251;  Bonfils  (Fauchille), 
sec.  490;  Moore,  Digest,  I,  698. 


SECTION  4.    JURISDICTION  ON  THE  HIGH  SEAS. 
CHURCH  v.  HUBBART. 

SUPREME  COURT  OF  THE  UNITED  STATES.     1804. 
2  Cranch,  187. 

Error  to  the  Circuit  Court  for  the  District  of  Massachusetts. 

[This  was  an  action  on  two  policies  of  insurance  on  the  cargo 
of  the  ship  Aurora  bound  from  New  York  to  Portuguese  ports 


158  JURISDICTION. 

on  the  coast  of  Brazil.  While  lying  four  or  five  leagues  from 
land  off  the  mouth  of  the  river  Para,  the  ship  was  seized  by 
Portuguese  authorities  for  attempting  to  trade  with  the  Portu- 
guese colony  of  Brazil  contrary  to  the  law  which  restricted  such 
trade  to  Portuguese  subjects.  The  defendant  argued  that  it  was 
relieved  of  liability  by  clauses  in  each  policy  which  provided  that 
the  insurers  should  not  be  liable  for  seizure  by  the  Portuguese 
for  illicit  trade.  The  plaintiff  argued  that  the  seizure  was 
illegal  since  it  was  made  on  the  high  seas.] 

MARSHALL,  CH.  J.  delivered  the  opinion  of  the  court.    .    .    . 

In  this  case  the  unlawfulness  of  the  voyage  was  perfectly 
understood  by  both  parties.  That  the  crown  of  Portugal  ex- 
cluded, with  the  most  jealous  watchfulness,  the  commercial 
intercourse  of  foreigners  with  their  colonies,  was,  probably,  a 
fact  of  as  much  notoriety  as  that  foreigners  had  devised  means 
to  elude  this  watchfulness,  and  to  carry  on  a  gainful  but  very 
hazardous  trade  with  those  colonies.  If  the  attempt  should 
succeed  it  would  be  very  profitable,  but  the  risk  attending  it  was 
necessarily  great.  It  was  this  risk  which  the  underwriters 
.  .  .  did  not  mean  to  take  upon  themselves.  .  .  .  When- 
ever the  risk  commences,  the  exception  commences  also,  for  it 
is  apparent  that  the  underwriters  meant  to  take  upon  themselves 
no  portion  of  that  hazard  which  was  occasioned  by  the  unlaw- 
fulness of  the  voyage.  If  it  could  have  been  presumed  by  the 
parties  to  this  contract,  that  the  laws  of  Portugal,  prohibiting 
commercial  intercourse  between  their  colonies  and  foreign  mer- 
chants, permitted  vessels  to  enter  their  ports,  or  to  hover  off 
their  coasts  for  the  purposes  of  trade,  with  impunity,  and  only 
subjected  them  to  seizure  and  condemnation  after  the  very  act 
had  been  committed,  or  if  such  are  really  their  laws,  then  indeed 
the  exception  might  reasonably  be  supposed  to  have  been  in- 
tended to  be  as  limited  in  its  construction  as  is  contended  for 
by  the  plaintiff.  .  .  .  But  this  presumption  is  too  extrava- 
gant to  have  been  made.  ...  As  a  general  principle,  the 
nation  which  prohibits  commercial  intercourse  with  its  colonies 
must  be  supposed  to  adopt  measures  to  make  that  prohibition 
effectual.  They  rrmst,  therefore,  be  supposed  to  seize  vessels 
coming  into  their  harbors  or  hovering  on  their  coasts  in  a  con- 
dition to  trade.  .  .  . 

That  the  law  of  nations  prohibits  the  exercise  of  any  act  of 
authority  over  a  vessel  in  the  situation  of  the  Aurora,  and  that 


CHURCH  v.  HUBBART.  159 

this  seizure  is,  on  that  account,  a  mere  marine  trespass  not 
within  the  exception,  cannot  be  admitted.  To  reason  from  the 
extent  of  protection  a  nation  will  afford  to  foreigners  to  the 
extent  of  the  means  it  may  use  for  its  own  security  does  not 
seem  to  be  perfectly  correct.  It  is  opposed  by  principles  which 
are  universally  acknowledged.  The  authority  of  a  nation  with- 
in its  own  territory  is  absolute  and  exclusive.  The  seizure  of 
a  vessel  within  the  range  of  its  cannon  by  a  foreign  force  is 
an  invasion  of  that  territory,  and  is  a  hostile  act  which  it  is 
its  duty  to  repel.  But  its  power  to  secure  itself  from  injury 
may  certainly  be  exercised  beyond  the  limits  of  its  territory. 
Upon  this  principle  the  right  of  a  belligerent  to  search  a  neu- 
tral vessel  on  the  high  seas  for  contraband  of  war  is  universally 
admitted,  because  the  belligerent  has  a  right  to  prevent  the  in- 
jury done  to  himself  by  the  assistance  intended  for  his  enemy: 
so  too  a  nation  has  a  right  to  prohibit  any  commerce  with  its 
colonies.  Any  attempt  to  violate  the  laws  made  to  protect  this 
right,  is  an  injury  to  itself  which  it  may  prevent,  and  it  has 
a  right  to  use  the  means  necessary  for  its  prevention.  These 
means  do  not  appear  to  be  limited  within  any  certain  marked 
boundaries,  which  remain  the  same  at  all  times  and  in  all  situ- 
ations. If  they  are  such  as  unnecessarily  to  vex  and  harass 
foreign  lawful  commerce,  foreign  nations  will  resist  their  exer- 
cise. If  they  are  such  as  are  reasonable  and  necessary  to  secure 
their  laws  from  violation,  they  will  be  submitted  to. 

In  different  seas,  and  on  different  coasts,  a  wider  or  more 
contracted  range,  in  which  to  exercise  the  vigilance  of  the  gov- 
ernment, will  be  assented  to.  Thus  in  the  channel  where  a 
very  great  part  of  the  commerce  to  and  from  all  the  north  of 
Europe  passes  through  a  very  narrow  sea,  the  seizure  of  vessels 
on  suspicion  of  attempting  an  illicit  trade  must  necessarily  be 
restricted  to  very  narrow  limits;  but  on  the  coast  of  South 
America,  seldom  frequented  by  vessels  but  for  the  purpose  of 
illicit  trade,  the  vigilance  of  the  government  may  be  extended 
somewhat  further;  and  foreign  nations  submit  to  such  regula- 
tions as  are  reasonable  in  themselves,  and  are  really  necessarv 
to  secure  that  monopoly  of  colonial  commerce,  which  is  claimed 
by  all  nations  holding  distant  possessions.  .  . 

Indeed,  the  right  given  to  our  own  revenue  cutters,  to  visit 
vessels  four  leagues  from  our  coast,  is  a  declaration  that  in  the 
opinion  of  the  American  government,  no  such  principle  as 
that  contended  for,  has  a  real  existence. 


160  JURISDICTION. 

THE  MARIANNA  FLORA. 

SUPREME  COUBT  OF  THE  UNITED   STATES.     1826. 
11  Wheaton,  1. 

Appeal  from  the  Circuit  Court  of  the  United  States  for  Massa- 
chusetts. 

[In  1821  the  American  armed  schooner  Alligator,  Lieutenant 
Stockton  commanding,  while  on  a  cruise  in  the  Atlantic  against 
pirates  and  slave-traders,  met  the  Portuguese  ship  Marianna 
Flora.  When  within  long  shot,  the  latter  opened  fire  upon  the 
Alligator,  and  continued  firing  until  within  musket  range,  when 
a  broadside  from  the  Alligator  silencei  her.  Not  until  that 
time  did  the  Marianna  Flora  hoist  her  national  flag,  although 
the  Alligator  had  hoisted  her  flag  immediately  upon  the  firing 
of  the  first  shot.  The  Portuguese  master  explained  his  conduct 
by  saying  that  he  thought  the  Alligator  was  a  piratical  cruiser. 
Lieutenant  Stockton  took  possession  of  the  vessel  and  sent  it  to 
Boston  where  it  was  libelled  for  an  alleged  piratical  aggression 
attempted  or  committed  against  the  Alligator.  The  District 
Court  decreed  restitution  of  the  vessel  and  damages  for  deten- 
tion. Pending  appeal  to  the  Circuit  Court,  the  ship  was  volun- 
tarily restored,  and  the  decree  as  to  damages  was  then  reversed. 
From  this  an  appeal  was  taken  to  the  Supreme  Court.] 

MR.  JUSTICE  STORY  delivered  the  opinion  of  the  court.    .    .    . 

In  the  present  posture  of  this  cause,  the  libellants  are  no 
longer  plaintiffs.  The  claimants  interpose  for  damages  in  their 
turn,  and  have  assumed  the  character  of  actors.  They  contend 
that  they  are  entitled  to  damages,  first,  because  the  conduct 
of  Lieutenant  Stockton,  in  the  approach  and  seizure  of  the 
Marianna  Flora,  was  unjustifiable ;  and,  secondly,  because,  at  all 
events,  the  subsequent  sending  her  in  for  adjudication  was 
without  any  reasonable  cause. 

In  considering  these  points,  it  is  necessary  to  ascertain  what 
are  the  rights  and  duties  of  armed,  and  other  ships,  navigating 
the  ocean  in  time  of  peace.  It  is  admitted,  that  the  right  of 
visitation  and  search  does  not,  under  such  circumstances,  belong 
to  the  public  ships  of  any  nation.  This  right  is  strictly  a  bellig- 
erent right,  allowed  by  the  general  consent  of  nations  in  time  of 
war,  and  limited  to  those  occasions.  It  is  true,  that  it  has  been 


THE  MARIANNA  FLORA.  161 

held  in  the  Courts  of  this  country,  that  American  ships,  offend- 
ing against  our  laws,  and  foreign  ships,  in  like  manner,  of- 
fending within  our  jurisdiction,  may,  afterwards,  be  pursued 
and  seized  upon  the  ocean,  and  rightfully  brought  into  our  ports 
for  adjudication.  This,  however,  has  never  been  supposed  to 
draw  after  it  any  right  of  visitation  or  search.  The  party,  in 
such  case,  seizes  at  his  peril.  If  he  establishes  the  forfeiture, 
he  is  justified.  If  he  fails,  he  must  make  full  compensation  in 
damages. 

Upon  the  ocean,  then,  in  time  of  peace,  all  possess  an  entire 
equality.  It  is  the  common  highway  of  all,  appropriated  to  the 
use  of  all;  and  no  one  can  vindicate  to  himself  a  superior  or 
exclusive  prerogative  there.  Every  ship  sails  there  with  the 
unquestionable  right  of  pursuing  her  own  lawful  business  with- 
out interruption;  but,  whatever  may  be  that  business,  she  is 
bound  to  pursue  it  in  such  a  manner  as  not  to  violate  the  rights 
of  others.  The  general  maxim  in  such  cases  is,  sic  utere  iuo,  ut 
11  on  alienum  laedas. 

It  has  been  argued,  that  no  ship  has  a  right  to  approach  an- 
other at  sea ;  and  that  every  ship  has  a  right  to  draw  round  her 
a  line  of  jurisdiction,  within  which  no  other  is  at  liberty  to 
intrude.  In  short,  that  she  may  appropriate  so  much  of  the 
ocean  as  she  may  deem  necessary  for  her  protection,  and  prevent 
any  nearer  approach. 

This  doctrine  appears  to  us  novel,  and  is  not  supported  by 
any  authority.  It  goes  to  establish  upon  the  ocean  a  territorial 
jurisdiction,  like  that  which  is  claimed  by  all  nations  within 
cannon-shot  of  their  shores,  in  virtue  of  their  general  sover- 
eignty. But  the  latter  right  is  founded  upon  the  principle  of 
sovereign  and  permanent  appropriation,  and  has  never  been 
successfully  asserted  beyond  it.  Every  vessel  undoubtedly  has 
a  right  to  the  use  of  so  much  of  the  ocean  as  she  occupies,  and 
as  is  essential  to  her  own  movements.  Beyond  this,  no  exclu- 
sive right  has  ever  yet  been  recognized,  and  we  see  no  reason 
for  admitting  its  existence.  Merchant  ships  are  in  the  constant 
habit  of  approaching  each  other  on  the  ocean,  either  to  relieve 
their  own  distress,  to  procure  information,  or  to  ascertain  the 
character  of  strangers ;  and,  hitherto,  there  has  never  been  sup- 
posed in  such  conduct  any  breach  of  the  customary  observances, 
or  of  the  strictest  principles  of  the  law  of  nations.  In  respect 
to  ships  of  war  sailing,  as  in  the  present  case,  under  the  author- 
,3  ity  of  their  government,  to  arrest  pirates,  and  other  public 


162  JURISDICTION. 

offenders,  there  is  no  reason  why  they  may  not  approach  anj 
vessels  descried  at  sea,  for  the  purpose  of  ascertaining  their 
real  characters.  Such  a  right  seems  indispensable  for  the  fair 
and  discreet  exercise  of  their  authority ;  and  the  use  of  it  cannot 
be  justly  deemed  indicative  of  any  design  to  insult  or  injure 
those  they  approach,  or  to  impede  them  in  their  lawful  com- 
merce. On  the  other  hand,  it  is  clear,  that  no  ship  is,  under 
such  circumstances,  bound  to  lie,  or  wait  the  approach  of  any 
other  ship.  She  is  at  full  liberty  to  pursue  her  voyage  in  her 
own  way,  and  to  use  all  necessary  precautions  to  avoid  any 
suspected  sinister  enterprise  or  hostile  attack.  She  has  a  right 
to  consult  her  own  safety ;  but,  at  the  same  time,  she  must  take 
care  not  to  violate  the  rights  of  others.  She  may  use  any  pre- 
cautions dictated  by  the  prudence  or  fears  of  her  officers ;  either 
as  to  delay,  or  the  progress  or  course  of  her  voyage ;  but  she  is 
not  at  liberty  to  inflict  injuries  upon  other  innocent  parties, 
simply  because  of  conjectural  dangers.  These  principles  seem  to 
us  the  natural  result  of  the  common  duties  and  rights  of  nations 
navigating  the  ocean  in  time  of  peace.  Such  a  state  of  things 
carries  with  it  very  different  obligations  and  responsibilities  from 
those  which  belong  to  public  war,  and  is  not  to  be  confounded 
with  it. 

The  first  inquiry,  then,  is  whether  the  conduct  of  Lieutenant 
Stockton  was,  under  all  the  circumstances  preceding  and  attend- 
ing the  combat,  justifiable.  There  is  no  pretence  to  say  that  he 
committed  the  first  aggression.  That,  beyond  all  question,  was 
on  the  part  of  the  Marianna  Flora ;  and  her  firing  was  persisted 
in  after  the  Alligator  had  hoisted  her  national  flag,  and,  of 
course,  held  out  a  signal  of  her  real  pacific  character.  What, 
then,  is  the  excuse  for  this  hostile  attack?  Was  it  occasioned 
by  any  default  or  misconduct  on  the  part  of  the  Alligator?  It 
is  said,  that  the  Alligator  had  no  right  to  approach  the  Mari- 
anna Flora,  and  that  the  mere  fact  of  approach  authorized  the 
attack.  This  is  what  the  court  feels  itself  bound  to  deny.  Lieu- 
tenant Stockton,  with  a  view  to  the  objects  of  his  cruise,  had 
just  as  unquestionable  a  right  to  use  the  ocean,  as  the  Portu- 
guese ship  had;  and  his  right  of  approach  was  just  as  perfect 
as  her  right  of  flight.  But,  in  point  of  fact,  Lieutenant  Stock- 
ton's approach  was  not  from  mere  motives  of  public  service, 
but  was  occasioned  by  the  acts  of  the  Marianna  Flora.  He  was 
steering  on  a  course  which  must,  in  a  short  time,  have  carried 
him  far  away  from  her.  She  lay  to,  and  showed  a  signal  ordi- 


THE  MARIANNA  FLORA.  163 

narily  indicative  of  distress.  It  was  so  understood,  and,  from 
motives  of  humanity,  the  course  was  changed,  in  order  to  afford 
the  necessary  relief.  There  is  not  a  pretence  in  the  whole  evi- 
dence, that  the  lying  to  was  not  voluntary,  and  was  not  an  in- 
vitation of  some  sort.  The  whole  reasoning  on  the  part  of  the 
claimants  is,  that  it  was  for  the  purpose  of  meeting  a  supposed 
enemy  by  daylight,  and,  in  this  way,  to  avoid  the  difficulties  of 
an  engagement  in  the  night.  But  how  was  this  to  be  known  on 
board  of  the  Alligator?  How  was  it  to  be  known  that  she  was 
a  Portuguese  ship,  or  that  she  took  the  Alligator  for  a  pirate, 
or  that  her  object  in  laying  to  was  a  defensive  operation  ?  "When 
the  vessels  were  within  reach  of  each  other,  the  first  salutation 
from  the  ship  was  a  shot  fired  ahead,  and,  at  the  same  time, 
no  national  flag  appeared  at  the  mast-head.  The  ship  was 
armed,  appeared  full  of  men,  and,  from  her  manoeuvres,  almost 
necessarily  led  to  the  supposition,  that  her  previous  conduct 
was  a  decoy,  and  that  she  was  either  a  piratical  vessel,  or,  at 
least,  in  possession  of  pirates.  Under  such  circumstances,  with 
hostilities  already  proclaimed,  Lieutenant  Stockton  was  cer- 
tainly not  bound  to  retreat;  and,  upon  his  advance,  other  guns, 
loaded  with  shot,  were  fired,  for  the  express'  purpose  of  destruc- 
tion. It  was,  then,  a  case  of  open,  meditated  hostility,  and 
this,  too,  without  any  national  flag  displayed  by  the  Portuguese 
ship,  which  might  tend  to  correct  the  error,  for  she  never 
hoisted  her  flag  until  the  surrender.  "What,  then,  was  Lieu- 
tenant Stockton's  duty?  In  our  view  it  was  plain;  it  was 
to  oppose  force  to  force,  to  attack  and  to  subdue  the  vessel  thus 
prosecuting  unauthorized  warfare  upon  his  schooner  and  crew. 
In  taking,  therefore,  the  readiest  means  to  accomplish  the  object, 
he  acted,  in  our  opinion,  with  entire  legal  propriety.  He  was 
not  bound  to  fly,  or  to  wait  until  he  was  crippled.  His  was  not 
a  case  of  mere  remote  danger,  but  of  imminent,  pressing,  and 
present  danger.  He  had  the  flag  of  his  country  to  maintain,  and 
the  rights  of  his  cruiser  to  vindicate.  To  have  hesitated  in  what 
his  duty  to  his  government  called  for  on  such  an  occasion  would 
have  been  to  betray  (what  no  honorable  officer  could  be  sup- 
posed to  indulge)  an  indifference  to  its  dignity  and  sovereignty. 
But,  it  is  argued,  that  Lieutenant  Stockton  was  bound  to  have 
affirmed  his  national  flag  by  an  appropriate  gun;  that  this  is  a 
customary  observance  at  sea,  and  is  universally  understood  as 
indispensable  to  prevent  mistakes  and  misadventures;  and  that 
the  omission  was  such  a  default  on  his  part,  as  places  him  in 


164  JURISDICTION. 

delicto  as  to  all  the  subsequent  transactions.  This  imputation 
certainly  comes  with  no  extraordinary  grace  from  the  party  by 
whom  it  is  now  asserted.  If  such  an  observance  be  usual  and 
necessary,  why  was  it  not  complied  with  on  the  part  of  the 
Marianna  Flora?  Her  commander  asserts,  that  by  the  laws  of 
his  own  country,  as  well  as  those  of  France  and  Spain,  this  is  a 
known  and  positive  obligation  on  all  armed  vessels,  which  they 
are  not  at  liberty  to  disregard.  Upon  what  ground,  then,  can 
he  claim  an  exemption  from  performing  it  ?  Upon  what  ground 
can  he  set  up  as  a  default  in  another,  that  which  he  has  wholly 
omitted  to  do  on  his  own  part?  His  own  duty  was  clear,  and 
pointed  out;  and  yet  he  makes  that  a  matter  of  complaint 
against  the  other  side,  which  was  confessedly  a  primary  default 
in  himself.  He  not  only  did  not  hoist  or  affirm  his  flag  in  the 
first  instance,  but  repeatedly  fired  at  his  adversary  with  hostile 
intentions,  without  exhibiting  his  own  national  character  at  all. 
He  left,  therefore,  according  to  his  own  view  of  the  law,  his  own 
duty  unperformed,  and  fortified,  as  against  himself  the  very 
inference,  that  his  ship  might  properly  be  deemed  under  such 
circumstances,  a  piratical  cruiser. 

But,  we  are  not  disposed  to  admit,  that  there  exists  any  such 
universal  rule  or  obligation  of  an  affirming  gun,  as  has  been 
suggested  at  the  bar.  It  may  be  the  law  of  the  maritime  states 
of  the  European  continent  already  alluded  to,  founded  in  their 
own  usages  or  positive  regulations.  But,  it  does  not  hence  fol- 
low, that  it  is  binding  upon  all  other  nations.  It  was  admitted, 
at  the  argument,  that  the  English  practice  is  otherwise;  and, 
surely,  as  a  maritime  power,  England  deserves  to  be  listened  to 
with  as  much  respect,  on  such  a  point,  as  any  other  nation.  It 
was  justly  inferred,  that  the  practice  of  America  is  conformable 
to  that  of  England1;  and  the  absence  of  any  counterproof  on  the 
record,  is  almost  of  itself  decisive.  Such,  however,  as  the  prac- 
tice is,  even  among  the  continental  nations  of  Europe,  it  is  a 
practice  adopted  with  reference  to  a  state  of  war,  rather  than 
peace.  It  may  be  a  useful  precaution  to  prevent  conflicts  be- 
tween neutrals,  and  allies,  and  belligerents,  and  even  between 
armed  ships  of  the  same  nation.  But  the  very  necessity  of  the 
precaution  in  time  of  war  arises  from  circumstances,  which  do 
not  ordinarily  occur  in  time  of  general  peace.  Assuming,  there- 
fore, that  the  ceremony  might  be  salutary  and  proper  in  periods 
of  war,  and  suitable  to  its  exigencies,  it  by  no  means  follows 
that  it  is  justly  to  be  insisted  on  at  the  peril  of  costs  and  dam- 


THE  MARIANNA  FLORA.  165 

• 

ages  in  peace.  In  any  view,  therefore,  we  do  not  think  this 
omission  can  avail  the  claimants. 

Again;  it  is  argued,  that  there  is  a  general  obligation  upon 
armed  ships,  in  exercising  the  right  of  visitation  and  search,  to 
keep  at  a  distance,  out  of  cannon  shot,  and  to  demean  themselves 
in  such  a  manner  as  not  to  endanger  neutrals.  And  this  objec- 
tion, it  is  added,  has  been  specially  provided  for,  and  enforced 
by  the  stipulations  of  many  of  our  own  treaties  with  foreign 
powers.  It  might  be  a  decisive  answer  to  this  argument,  that, 
here,  no  right  of  visitation  and  search  was  attempted  to  be  exer- 
cised. Lieutenant  Stockton  did  not  claim  to  be  a  belligerent, 
entitled  to  search  neutrals  on  the  ocean.  His  commission  was 
for  other  objects.  He  did  not  approach  or  subdue  the  Marianna 
Flora,  in  order  to  compel  her  to  submit  to  his  search,  but  with 
other  motives.  He  took  possession  of  her,  not  because  she  re- 
sisted the  right  of  search,  but  because  she  attacked  him  in  a 
hostile  manner,  without  any  reasonable  cause  or  provocation. 

Doubtless  the  obligation  of  treaties  is  to  be  observed  with  en- 
tire good  faith,  and  scrupulous  care.  But  stipulations  in 
treaties  having  sole  reference  to  the  exercise  of  the  rights  of 
belligerents  in  time  of  war,  cannot,  upon  any  reasonable  prin- 
ciples of  construction,  be  applied  to  govern  cases  exclusively  of 
another  nature,  and  belonging  to  a  state  of  peace.  Another  con- 
sideration, quite  sufficient  to  establish  that  such  stipulations  can- 
not be  applied  in  aid  of  the  present  case,  is,  that  whatever  may 
be  our  duties  to  other  nations,  we  have  no  such  treaty  subsisting 
with  Portugal.  It  will  scarcely  be  pretended,  that  we  are  bound 
to  Portugal  by  stipulations  to  which  she  is  no  party,  and  by 
which  she  incurs  no  correspondent  obligation. 

Upon  the  whole,  we  are  of  opinion,  that  the  conduct  of  Lieu- 
tenant Stockton,  in  approaching,  and  ultimately,  in  subduing 
the  Marianna  Flora,  was  entirely  justifiable.  .  .  .  The  decree 
of  the  Circuit  Court  ought  to  be  affirmed.  .  .  . 


166  JURISDICTION. 

• 
THE  BELGENLAND. 

• 

SUPREME  COUBT  OF  THE  UNITED  STATES.     1885. 
114  U.   S.  355. 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the 
Eastern  District  of  Pennsylvania. 

This  case  grew  out  of  a  collision  which  took  place  on  the  high 
seas  between  the  Norwegian  barque  Luna  and  the  Belgian  steam- 
ship Belgenland  by  which  the  former  was  run  down  and  sunk. 
Part  of  the  crew  of  the  Luna,  including  the  master,  were  rescued 
by  the  Belgenland  and  brought  to  Philadelphia.  The  master 
immediately  libelled  the  steamship  on  behalf  of  the  owners  of 
the  Luna  and  her  cargo,  and  her  surviving  crew,  in  a  cause  civil 
and  maritime.  .  .  .  The  District  Court  decided  in  favor  of 
the  libellant.  .  .  .  An  appeal  was  taken  to  the  Circuit  Court. 
.  .  .  A  decree  was  thereupon  entered,  affirming  the  decree  of 
the  District  Court.  ...  A  reargument  was  then  had  on  the 
question  of  jurisdiction,  and  the  court  held  and  decided  that  the 
Admiralty  Courts  of  the  United  States  have  jurisdiction  of 
collisions  occurring  on  the  high  seas  between  vessels  owned  by 
foreigners  of  different  nationalities;  and  overruled  the  plea  to 
the  jurisdiction. 

MR.  JUSTICE  BRADLEY  delivered  the  opinion  of  the  court.   .   .  . 

The  first  question  to  be  considered  is  that  of  the  jurisdiction 
of  the  District  Court  to  hear  and  determine  the  cause. 

It  is  unnecessary  here,  and  would  be  out  of  place,  to  examine 
the  question  which  has  so  often  engaged  the  attention  of  the 
common  law  courts,  whether,  and  in  what  cases,  the  courts  of 
one  country  should  take  cognizance  of  controversies  arising  in  a 
foreign  country,  or  in  places  outside  of  the  jurisdiction  of  any 
country.  .  .  .  We  shall  content  ourselves  with  inquiring 
what  rule  is  followed  by  Courts  of  Admiralty  in  dealing  with 
maritime  causes  arising  between  foreigners  and  others  on  the 
high  seas. 

This  question  is  not  a  new  one  in  these  courts.  Sir  William 
Scott  had  occasion  to  pass  upon  it  in  1799.  An  American  ship 
was  taken  by  the  French  on  a  voyage  from  Philadelphia  to 
London,  and  afterwards  rescued  by  her  crew,  carried  to  Eng- 
land, and  libelled  for  salvage;  and  the  court  entertained  juris- 
diction. The  crew,  however,  though  engaged  in  the  American 


THE  BELGENLAND.  167 

I 

ship,  were  British  born  subjects,  and  weight  was  given  to  this 
circumstance  in  the  disposition  of  the  case.  The  judge,  however, 
made  the  following  remarks:  "But  it  is  asked,  if  they  were 
American  seamen,  would  this  court  hold  plea  of  their  demands? 
It  may  be  time  enough  to  answer  this  question  whenever  the 
fact  occurs.  In  the  meantime,  I  will  say  without  scruple  that  I 
can  see  no  inconvenience  that  would  arise  if  a  British  court  of 
justice  was  to  hold  plea  in  such  a  case ;  or  conversely,  if  Amer- 
ican courts  were  to  hold  pleas  of  this  nature  respecting  the 
merits  of  British  seamen  on  such  occasions.  For  salvage  is  a 
question  of  jus  gentium,  and  materially  different  from  the  ques- 
tion of  a  mariner's  contract,  which  is  a  creature  of  the  partic- 
ular institutions  of  the  country,  to  be  applied  and  construed  and 
explained  by  its  own  particular  rules.  There  might  be  good 
reason,  therefore,  for  this  court  to  decline  to  interfere  in  such 
cases  and  to  remit  them  to  their  own  domestic  forum;  but  this 
is  a  general  claim,  upon  the  general  ground  of  quantum  meruit, 
to  be  governed  by  a  sound  discretion,  acting  on  general  prin- 
ciples ;  and  I  can  see  no  reason  why  one  country  should  be  afraid 
to  trust  to  the  equity  of  the  courts  of  another  on  such  a  question, 
of  such  a  nature,  so  to  be  determined."  The  Two  Friends,  1 
Ch.  Rob.,  271,  278. 

The  law  has  become  settled  very  much  in  accord  with  these 
views.  That  was  a  case  of  salvage ;  but  the  same  principles 
would  seem  to  apply  to  the  case  of  destroying  or  injuring  a  ship, 
as  to  that  of  saving  it.  Both,  when  acted  on  the  high  seas,  be- 
tween persons  of  different  nationalities,  come  within  the  domain 
of  the  general  law  of  nations,  or  communis  juris,  and  are  prima 
facie  proper  subjects  of  inquiry  in  any  Court  of  Admiralty 
which  first  obtains  jurisdiction  of  the  rescued  or  offending  ship 
at  the  solicitation  in  justice  of  the  meritorious,  or  injured, 
parties. 

The  same  question  of  jurisdiction  arose  in  another  salvage  case 
which  came  before  this  court  in  1804,  Mason  v.  The  Blaireau,  2 
Cranch,  240.  There  a  French  ship  was  saved  by  a  British  ship, 
and  brought  into  a  port  of  the  United  States;  and  the  question 
of  jurisdiction  was  raised  by  Mr.  Martin,  of  Maryland,  who, 
however,  did  not  press  the  point,  and  referred  to  the  observa- 
tions of  Sir  "William  Scott  in  The  Two  Friends.  Chief  Justice 
Marshall,  speaking  for  the  court,  disposed  of  the  question  as 
follows: — "A  doubt  has  been  suggested,"  said  he,  "respecting 
the  jurisdiction  of  the  court,  and  upon  reference  to  the  author- 


168  JURISDICTION. 

ities,  the  point  does  not  appear  to  have  been  ever  settled.  These 
doubts  seem  rather  founded  on  the  idea  that  upon  principles  of 
general  policy,  this  court  ought  not  to  take  cognizance  of  a  case 
entirely  between  foreigners,  than  from  any  positive  incapacity 
to  do  so.  On  weighing  the  considerations  drawn  from  public 
convenience,  those  in  favor  of  the  jurisdiction  appear  much  to 
overbalance  those  against  it,  and  it  is  the  opinion  of  this  court, 
that,  whatever  doubts  may  exist  in  a  case  where  the  jurisdiction 
may  be  objected  to,  there  ought  to  be  none  Avhere  the  parties 
assent  to  it."  .  .  . 

But,  although  the  courts  will  use  a  discretion  about  assuming 
jurisdiction  of  controversies  between  foreigners  in  cases  arising 
beyond  the  territorial  jurisdiction  of  the  country  to  which  the 
courts  belong,  yet  where  such  controversies  are  communis  juris, 
that  is,  where  they  arise  under  the  common  law  of  nations,  spe- 
cial grounds  should  appear  to  induce  the  court  to  deny  its  aid 
to  a  foreign  suitor  when  it  has  jurisdiction  of  the  ship  or  party 
charged.  The  existence  of  jurisdiction  in  all  such  cases  is  be- 
yond dispute;  the  only  question  will  be,  whether  it  is  expedient 
to  exercise  it.  See  2  Parsons  Ship,  and  Adm.,  226,  and  cases 
cited  in  the  notes.  In  the  case  of  The  Jerusalem,  2  Gall.  191, 
.  .  Justice  Story  examined  the  subject  very  fully,  and 
came  to  the  conclusion  that,  wherever  there  is  a  maritime  lien 
on  the  ship,  an  Admiralty  Court  can  take  jurisdiction  on  the 
principle  of  the  civil  law,  that  in  proceedings  in  rem  the  proper 
forum  is  the  locus  rei  sitce.  He  added :  ' '  Witlj  reference,  there- 
fore, to  what  may  be  deemed  the  public  law  of  Europe,  a  pro- 
ceeding in  rem  may  well  be  maintained  in  our  courts  where  the 
property  of  a  foreigner  is  within  our  jurisdiction.  Nor  am  I 
able  to  perceive  how  the  exercise  of  such  judicial  authority 
clashes  with  any  principles  of  public  policy."  .  .  . 

Justice  Story's  decision  in  this  case  was  referred  to  by  Dr. 
Lushington  with  strong  approbation  in  the  case  of  The  Golub- 
chick,  1  "W.  Rob.,  143,  decided  in  1840,  and  was  adopted  as 
authority  for  his  taking  jurisdiction  in  that  case. 

In  1839,  a  case  of  collision  on  the  high  seas  between  two  for- 
eign ships  of  different  countries  (the  very  case  now  under  con- 
sideration) came  before  the  English  Admiralty.  The  Johann 
Friederich,  1  W.  Rob.  35.  A  Danish  ship  was  sunk  by  a  Bremen 
ship,  and  on  the  latter  being  libelled,  the  respondents  entered  a 
protest  against  the  jurisdiction  of  the  court.  But  jurisdiction 
was  retained  by  Dr.  Lushington  who,  amongst  other  things,  re- 


THE  BELGENLAND.  169 

marked:  "An  alien  friend  is  entitled  to  sue  [in  our  courts]  on 
the  same  footing  as  a  British-born  subject,  and  if  the  foreigner 
in  this  case  had  been  resident  here,  and  the  cause  of  action  had 
originated  infra  corpus  comitatus,  no  objection  could  have  been 
taken. ' '  Reference  being  made  to  the  observations  of  Lord 
Stowell  in  cases  of  seamen's  wages,  the  judge  said:  "All  ques- 
tions of  collision  are  questions  communis  juris;  but  in  case  of 
mariners'  wages,  whoever  engages  voluntarily  to  serve  on  board 
a  foreign  ship,  necessarily  undertakes  to  be  bound  by  the  law  of 
the  country  to  which  such  ship  belongs,  and  the  legality  of  his 
claim  must  be  tried  by  such  law.  One  of  the  most  important 
distinctions,  therefore,  respecting  cases  where  both  parties  are 
foreigners  is,  whether  the  case  be  communis  juris  or  not.  .  .  . 
If  these  parties  must  wait  until  the  vessel  that  has  done  the 
injury  returned  to  its  own  country,  their  remedy  might  be  al- 
together lost,  for  she  might  never  return,  and,  if  she  did,  there 
is  no  part  of  the  world  to  which  they  might  not  be  sent  for  their 
redress." 

In  the  subsequent  case  of  The  Griefswald,  1  Swabey,  430,  de- 
cided by  the  same  judge  in  1859,  which  arose  out  of  a  collision 
between  a  British  barque  and  a  Persian  ship  in  the  Dardanelles, 
Dr.  Lushington  said:  "In  cases  of  collision,  it  has  been  the 
practice  of  this  country,  and,  so  far  as  I  know,  of  the  European 
States  and  of  the  United  States  of  America,  to  allow  a  party 
alleging  grievance  by  a  collision  to  proceed  in  rem  against  the 
ship  wherever  found,  and  this  practice,  it  is  manifest,  is  most 
conducive  to  justice,  because  in  very  many  cases  a  remedy  in 
personam  would  be  impracticable." 

The  subject  has  frequently  been  before  our  own  Admiralty 
Courts  of  original  jurisdiction,  and  there  has  been  but  one  opin- 
ion expressed,  namely,  that  they  have  jurisdiction  in  such  cases, 
and  that  they  will  exercise  it  unless  special  circumstances  exist 
to  show  that  justice  would  be  better  subserved  by  declining  it. 
.  .  .  Indeed,  where  the  parties  are  not  only  foreigners,  but 
belong  to  different  nations,  and  the  injury  or  salvage  service 
takes  place  on  the  high  seas,  there  seems  to  be  no  good  reason 
why  the  party  injured,  or  doing  the  service,  should  ever  be  denied 
justice  in  our  courts.  Neither  party  has  any  peculiar  claim  to 
be  judged  by  the  municipal  law  of  his  own  country,  since  the 
case  is  pre-eminently  one  communis  juris,  and  can  generally  be 
more  impartially  and  satisfactorily  adjudicated  by  the  court  of 
a  third  nation  having  jurisdiction  of  the  res  or  parties,  than  it 


170  JURISDICTION. 

could  be  by  the  courts  of  either  of  the  nations  to  which  the 
litigants  belong.  As  Judge  Deady  very  justly  said,  in  a  case 
before  him  in  the  district  of  Oregon:  "The  parties  cannot  be 
remitted  to  a  home  forum,  for,  being  subjects  of  different  gor- 
ernments,  there  is  no  such  tribunal.  The  forum  which  is  com- 
mon to  them  both  by  the  ju-s  gentium  is  any  court  of  admiralty 
within  the  reach  of  whose  process  they  may  both  be  found." 
Bernhard  v.  Greene,  3  Sawyer,  230,  235. 

As  to  the  law  which  should  be  applied  in  cases  between  par- 
ties, or  ships,  of  different  nationalities,  arising  on  the  high  seas, 
not  within  the  jurisdiction  of  any  nation,  there  can  be  no  doubt 
that  it  must  be  the  general  maritime  law,  as  understood  and 
administered  in  the  courts  of  the  country  in  which  the  litigation 
is  prosecuted.  .  .  . 

The  decree  of  the  Circuit  Court  is  affirmed.    .    .    . 

NOTE. — It  was  a  principle  of  the  Roman  law  that  the  seas  are  free 
and  incapable  of  appropriation.  The  Mediterranean,  however — the 
only  sea  which  was  of  much  importance  to  the  Romans — came  ulti- 
mately to  be  surrounded  by  Roman  territory  tand  was  dominated 
by  Roman  fleets.  Until  cpmparatively  recent  times,  pirates  were 
a  serious  danger  to  maritime  commerce,  and  for  their  suppression, 
as  well  as  for  other  reasons,  the  states  which  succeeded  the  Roman 
empire  asserted  jurisdiction  not  only  over  their  marginal  waters 
but  over  vast  areas  of  the  high  seas.  Venice  claimed  jurisdiction 
over  the  whole  of  the  upper  Adriatic  and  her  claim  to  exact  toll  from 
vessels  navigating  therein  was  defended  by  the  famous  Paul  Sarpi. 
The  King  of  Denmark  and  Norway  claimed  the  Sound  and  all  the 
waters  lying  between  Denmark  and  Iceland.  The  pretensions  of  both 
Venice  and  Denmark  were  based  on  the  fact  that  they  controlled 
the  opposite  shores  and  hence  should  control  the  intervening  waters. 
More  extravagant  than  any  of  these  claims  were  those  put  forward 
by  Spain  and  Portugal  who  in  the  sixteenth  century  divided  the 
great  oceans  between  them,— Spain  taking  under  her  exclusive  juris- 
diction the  western  portion  of  the  Atlantic,  the  Gulf  of  Mexico,  and 
the  Pacific,  while  Portugal  asserted  similar  authority  in  the  eastern 
portion  of  the  Atlantic  south  of  Morocco  and  in  the  Indian  Ocean 
Such  absurd  claims  inevitably  provoked  protest,  and  England  was  in 
a  favorable  position  to  oppose  them,  for,  prior  to  the  accession  of 
James  I  in  1603,  she  had  never  asserted  for  herself  any  exclusive 
rights  over  any  but  adjacent  waters.  Even  when  Henry  V,  after 
the  conquest  of  France  and  the  recognition  of  himself  as  the  heir  to  the 
French  Crown,  was  urged  by  Parliament  to  levy  tribute  on  all  foreign 
ships  in  the  English  Channel,  he  refused.  Hence  when  the  Spanish 
Ambassador  came  to  protest  against  Sir  Francis  Drake's  plundering 
of  Spanish  merchantmen  on  the  coast  of  South  America,  the  reply 
of  Queen  Elizabeth  was  a  statement  both  of  the  practice  of  her  prede- 


NOTE.  171 

cessors  as  well  as  of  the  doctrine  which  now  prevails.     She  said: 

All  are  at  liberty  to  navigate  that  vast  ocean,  since  the  use 
of  the  sea  and  the  air  is  common  to  all.  No  nation  or  private 
person  can  have  any  title  to  the  ocean,  for  neither  the  course 
of  nature  nor  public  usage  permits  any  occupation  of  it. 

Camden,  Annales  Rerum  Anglicarum,  309. 

The  doctrine  here  stated  was  the  basis  of  Grotius'  well-known  essay 
Mare  Liberum,  which  was  published  in  1609.  This  in  turn  provoked 
John  Selden  to  write  Mare  Clausum,  not  published,  however,  until 
1635,  which  is  the  classic  exposition  of  the  doctrine  that  the  high 
seas  can  be  appropriated. 

May  a  state  protect  itself  by  taking  defensive  measures  on  the 
high  seas?  In  Church  v.  Hubbart  (1804),  2  Cranch,  187,  a  claim  to 
such  a  right  was  sustained,  but  the  doctrine  of  that  case  has  been 
subjected  to  severe  criticism.  See  especially  Wheaton  (Dana),  note 
108.  But  the  decision  has  the  weighty  support  of  Lord  Stowell  in 
Le  Louis  (1817),  2  Dodson,  210,  and  of  Chief  Justice  Cockburn  in 
The  Queen  v.  Keyn  (1876),  L.  R.  2  Ex.  Div  63,  214.  "Higher  judicial 
authority  to  support  a  principle  of  international  law  could  not  be 
found,"  Piggott,  Nationality,  II,  49.  The  action  of  Spain  in  1873 
in  seizing  the  Virginius  on  the  high  seas  while  it  was  employed  in 
aid  of  an  insurrection  in  Cuba  against  Spanish  authority  was  an 
act  of  self-defense  which  was  justified  by  facts  ascertained  after  the 
capture  of  the  vessel,  and  which  was  no  less  an  act  of  self-defense 
because  committed  on  the  high  seas.  The  Virginius  was  carrying 
an  American  register  fraudulently  obtained,  but  even  if  the  register 
had  been  valid  the  employment  of  the  vessel  on  an  errand  hostile 
to  Spain  justified  the  Spanish  authorities  in  seizing  it.  The  brutal 
slaughter  of  the  persons  found  on  board  presents  considerations  of 
another  character.  See  Cobbett,  Cases  and  Opinions,  I,  171;  Hyde, 
I,  114;  Moore,  Digest,  II,  895.  See  also  Rose  v.  Himely  (1808),  4 
Cranch,  241;  Hudson  v.  Guestier  (1810),  6  Ib.  281;  The  Apollon 
(1824),  9  Wheaton,  362;  In  re  Cooper  (1892),  143  U.  S.  472;  Cucullu 
v.  Louisiana  Insurance  Co.  (1827),  5  Martin,  N.  S.  (La.)  464;  United 
States  v.  Swan  (1892),  50  Fed.  108;  United  States  v.  The  Kodiak 
(1892),  53  Fed.  126;  The  Alexander  (1894),  60  Fed.  914.  Sir  Travers 
Twiss,  in  The  Law  of  Nations  Considered  as  Independent  Political 
Communities,  sec.  190,  Sir  Robert  Phillimore  in  Commentaries,  I,  276, 
Westlake,  I,  175,  and  Pitt  Cobbett,  Cases  and  Opinions,  I,  144,  deny 
that  any  right  to  take  defensive  measures  on  the  high  seas  is  ad- 
mitted in  international  law,  although  they  concede  that  nations  may 
through  comity  acquiesce  in  its  exercise.  But  Oppenheim,  I,  261, 
holds  that  long  continued  practice  unopposed  by  the  nations  con- 
cerned has  resulted  in  the  incorporation  of  the  principle  in  the  body 
of  international  law.  This  seems  a  sound  view.  If  the  right  to 
adopt  defensive  measures  beyond  a  country's  own  jurisdiction  be 
admitted  at  all,  and  the  discussion  provoked  by  such  cases  as  the 
destruction  of  the  Caroline  in  American  waters  by  British  forces 
in  1837  and  the  seizure  of  the  Virginius  on  the  high  seas  by  Spain 
in  1873  shows  that  it  is  admitted,  the  legitimacy  of  such  mild  pre- 
ventive measures  as  that  involved  in  Church  v.  Hubbart  should  not 


172  JURISDICTION. 

be  questioned.  For  an  extended  discussion  of  the  British  Hovering 
Acts,  see  Piggott,  Nationality,  II,  40-60.  For  the  French  practice,  see 
M6rignhac,  Traite  de  Droit  International,  II,  387.  For  the  American 
practice  see  Moore,  Digest,  I,  725. 

A  situation  which  well  exemplified  the  principles  laid  down  in 
Church  v.  Hubbart  arose  in  1864  when  the  Kearsarge  appeared  oft 
Cherbourg,  France,  in  pursuit  of  the  Alabama,  then  lying  in  that 
harbor.  When  a  battle  was  seen  to  be  impending  which  might  take 
place  just  beyond  the  three-mile  limit,  the  French  Minister  of  Foreign 
Affairs  protested  to  the  American  Minister  in  this  statement: 

That  a  sea  fight  would  thus  be  got  up  in  the  face  of  France, 
and  at  a  distance  from  their  coast  within  reach  of  the  guns 
used  on  shipboard  in  these  days.  That  the  distance  to  which 
the  neutral  right  of  an  adjoining  government  extended  itself 
from  the  coast  was  unsettled,  and  that  the  reason  of  the  old 
rules,  which  assumed  that  three  miles  was  the  outermost 
limit  of  a  cannon  shot,  no  longer  existed,  and  that,  in  a  word, 
a  fight  on  or  about  such  a  distance  would  be  offensive  to 
the  dignity  of  France  and  they  would  not  permit  it. 

The  American  Minister  replied  that  the  three-mile  rule  was  the  only 
recognized  rule,  and  in  this  stand  he  was  supported  by  Secretary 
Seward.  The  protest  of  the  French  Government  seems,  however, 
to  have  been  entirely  reasonable,  and  had  any  shots  from  the  Kear- 
sage  caused  damage  on  the  adjacent  coast  the  United  States  would 
have  been  responsible.  In  fact,  the  fighting  began  when  the  two 
vessels  were  about  seven  miles  out,  and  the  Alabama  sank  when 
about  five  miles  from  land.  See  Moore,  Digest,  I,  723. 

It  is  admitted  that  an  offending  vessel  may  be  pursued  beyond  a 
state's  territorial  limits  and  taken  upon  the  high  seas,  provided  the 
pursuit  be  instant  and  continuous,  The  King  v.  The  Ship  North  (1905), 
11  Exchequer  Court  of  Canada,  141.  See  also  Annuaire  de  I'lnstitut  de 
Droit  International  (1894-95),  XIII,  329.  Such  pursuit,  however,  may 
not  be  prosecuted  into  the  territorial  waters  of  another  state,  The  Itata 
(1892),  Moore,  Int.  Art.  Ill,  3067,  3070. 

1        / 


SECTION  5.    JURISDICTION  OVER  MERCHANT  SHIPS  m  TERRITORIAL 

WATERS. 

REGINA  v.  ANDERSON. 

COTJBT  OF  CRIMINAL  APPEAL  OF  ENGLAND.     1868. 
11   Cox,   Criminal   Cases,   198. 

Case  reserved  by  Byles,  J.,  at  the  October  Sessions  of  the 
Certral  Criminal  Court,  1868,  for  the  opinion  of  this  court. 


REGINA  v.  ANDERSON.  173 

James  Anderson,  an  American  citizen,  was  indicted  for 
murder  on  board  a  vessel,  belonging  to  the  port  of  Yarmouth  in 
Nova  Scotia.  She  was  registered  in  London,  and  was  sailing 
under  the  British  flag. 

At  the  time  of  the  offence  committed  the  vessel  was  in  the 
river  Garonne,  within  the  boundaries  of  the  French  empire,  on 
her  way  up  to  Bordeaux,  which  city  is  by  the  course  of  the 
river  about  ninety  miles  from  the  open  sea.  The  vessel  had 
proceeded  about  half-way  up  the  river,  and  was  at  the  time  of 
the  offence  about  three  hundred  yards  from  the  nearest  shore, 
the  river  at  that  place  being  about  half  a  mile  wide. 

The  tide  flows  up  to  the  place  and  beyond  it. 

No  evidence  was  given  whether  the  place  was  or  was  not 
within  the  limits  of  the  port  of  Bordeaux. 

It  was  objected  for  the  prisoner  that  the  offence  having  been 
committed  within  the  empire  of  France,  the  vessel  being  a 
colonial  vessel,  and  the  prisoner  an  American  citizen,  the  Court 
had  no  jurisdiction  to  try  him. 

I  expressed  an  opinion  unfavorable  to  the  objection,  but 
agreed  to  grant  a  case  for  the  opinion  of  this  Court. 

The  prisoner  was  convicted  of  manslaughter. 

J.  BARNARD  BYLES. 

BOVILL,  C.  J.  There  is  no  doubt  that  the  place  where  the 
offence  was  committed  was  within  the  territory  of  France,  and 
that  the  prisoner  was  therefore  subject  to  the  laws  of  France, 
which  the  local  authorities  of  that  realm  might  have  enforced 
if  so  minded;  but  at  the  same  time,  in  point  of  law,  the  offence 
was  also  committed  within  British  territory,  for  the  prisoner 
was  a  seaman 'on  board  a  merchant  vessel,  which,  as  to  her  crew 
and  master,  must  be  taken  to  have  been  at  the  time  under  the 
protection  of  the  British  flag,  and,  therefore,  also  amenable  to 
the  provisions  of  the  British  law.  It  is  true  that  the  prisoner 
was  an  American  citizen,  but  he  had  with  his  own  consent  em- 
barked on  board  a  British  vessel  as  one  of  the  crew.  Although 
the  prisoner  was  subject  to  the  American  jurisprudence  as  an 
American  citizen,  and  to  the  law  of  France  as  having  committed 
an  offence  within  the  territory  of  France,  yet  he  must  also  be 
considered  as  subject  to-  the  jurisdiction  of  British  law,  which 
extends  to  the  protection  of  British  vessels,  though  in  ports 
belonging  to  another  country.  From  the  passage  in  the  treatise 
of  Ortolan,  already  quoted,  it  appears  that,  with  regard  to  of- 
fences committed  on  board  of  foreign  vessels  within  the  French 


174  JURISDICTION. 

territory,  the  French  nation  will  not  assert  their  police  law 
unless  invoked  by  the  master  of  the  vessel,  or  unless  the  offence 
leads  to  a  disturbance  of  the  peace  of  the  port;  and  several  in- 
stances where  that  course  was  adopted  are  mentioned.  Among 
these  are  two  cases  where  offences  were  committed  on  board 
American  vessels — one  at  the  port  of  Antwerp,  and  the  other 
at  Marseilles — and  where,  on  the  local  authorities  interfering, 
the  American  Court  claimed  exclusive  jurisdiction.  As  far  as 
America  herself  is  concerned,  it  is  clear  that  she,  by  the  statutes 
of  the  23d  of  March,  1825,  has  made  regulations  for  persons  on 
board  her  vessels  in  foreign  parts,  and  we  have  adopted  the  same 
course  of  legislation.  Our  vessels  must  be  subject  to  the  laws 
of  the  nation  at  any  of  whose  ports  they  may  be,  and  also  to  the 
laws  of  our  country,  to  which  they  belong.  As  to  our  vessels 
when  going  to  foreign  parts  we  have  the  right,  if  we  are  not 
bound,  to  make  regulations.  America  has  set  us  a  strong  ex- 
ample that  we  have  the  right  to  do  so.  In  the  present  case,  if 
it  were  necessary  to  decide  the  question  on  the  17  &  18  Viet, 
c.  104,  I  should  have  no  hesitation  in  saying  that  we  now  not 
only  legislate  for  British  subjects  on  board  of  British  vessels, 
but  also  for  all  those  who  form  the  crews  thereof,  and  that 
there  is  no  difficulty  in  so  construing  the  statute ;  but  it  is  not 
necessary  to  decide  that  point  now.  Independently  of  that  stat- 
ute, the  general  law  is  sufficient  to  determine  this  case.  Here 
the  offence  was  committed  on  board  a  British  vessel  by  one  of 
the  crew,  and  it  makes  no  difference  whether  the  vessel  was 
within  a  foreign  port  or  not.  If  the  offence  had  been  com- 
mitted on  the  high  seas  it  is  clear  that  it  would  have  been  within 
the  jurisdiction  of  the  Admiralty,  and  the  Central  Criminal 
Court  has  now  the  same  extent  of  jurisdiction.  Does  it  make 
any  difference  because  the  vessel  was  in  the  river  Garonne  half- 
way between  the  sea  and  the  head  of  the  river?  The  place 
where  the  offence  was  committed  was  in  a  navigable  part  of  the 
river  below  bridge,  and  where  the  tide  ebbs  and  flows,  and  great 
ships  do  lie  and  hover.  An  offence  committed  at  such  a  place, 
according  to  the  authorities,  is  within  the  Admiralty  jurisdic- 
tion, and  it  is  the  same  as  if  the  offence  had  been  committed  on 
the  high  seas.  On  the  whole  I  come  to  the  conclusion  that  the 
prisoner  was  amenable  to  the  British  law,  and  that  the  convic- 
tion was  right. 

BYLES,  J.    I  am  of  the  same  opinion.    I  adhere  to  the  opinion 
that  I  expressed  at  the  trial.    A  British  ship  is,  for  the  purposes 


REGINA  v.  ANDERSON.  175 

of  this  question,  like  a  floating  island;  and,  when  a  crime  is 
committed  on  board  a  British  ship,  it  is  within  the  jurisdiction 
of  the  Admiralty  Court,  and  therefore  of  the  Central  Criminal 
Court,  and  the  offender  is  as  amenable  to  British  law  as  if  he 
had  stood  on  the  Isle  of  Wight  and  committed  the  crime.  Two 
English  and  two  American  cases  decide  that  a  crijne  committed 
on  board  a  British  vessel  in  a  river  like  the  one  in  question, 
where  there  is  the  flux  and  reflux  of  the  tide,  and  wherein  great 
ships  do  hover,  is  within  the  jurisdiction  of  the  Admiralty 
Court;  and  that  is  also  the  opinion  expressed  in  Kent's  Com- 
mentaries. The  only  effect  of  the  ship  being  within  the  ambit 
of  French  territory  is  that  there  might  have  been  concurrent 
jurisdiction  had  the  French  claimed  it.  I  give  no  opinion  on 
the  question  whether  the  case  comes  within  the  enactment  of 
the  Merchant  Shipping  Act. 

BLACKBURN,  J.  I  am  of  the  same  opinion.  It  is  not  neces- 
sary to  decide  whether  the  case  comes  within  the  Merchant 
Shipping  Act.  If  the  offence  could  have  been  properly  tried  in 
any  English  court,  then  the  Central  Criminal  Court  had  juris- 
diction to  try  it.  It  has  been  decided  by  a  number  of  cases  that 
a  ship  on  the  high  seas,  carrying  a  national  flag,  is  part  of  the 
territory  of  that  nation  whose  flag  she  carries;  and  all  persons 
on  board  her  are  to  be  considered  as  subject  to  the  jurisdiction 
of  the  laws  of  that  nation,  as  much  so  as  if  they  had  been  on 
land  within  that  territory.  From  the  earliest  times  it  has  been 
held  that  the  maritime  courts  have  jurisdiction  over  offences 
committed  on  the  high  seas  wrhere  great  ships  go,  which  are,  as 
it  were,  common  ground  to  all  nations,  and  that  the  jurisdiction 
extends  over  ships  in  rivers  or  places  where  great  ships  go  as 
far  as  the  tide  extends.  In  this  case  the  vessel  was  within 
French  territory,  and  subject  to  the  local  jurisdiction,  if  the 
French  authorities  had  chosen  to  exercise  it.  Our  decisions 
establish  that  the  Admiralty  jurisdiction  extends  at  common  law 
over  British  ships  on  the  high  seas,  or  in  waters  where  great 
ships  go  as  far  as  the  tide  ebbs  and  flows.  The  cases  Rex  v. 
Allen,  [1  Moo.  C.  C.  494]  and  Rex  v.  Jemot  [Old  Baily,  1812, 
MS.]  are  most  closely  in  point  and  establish  that  offences  com- 
mitted on  board  British  ships  in  places  where  great  ships  go 
are  within  the  jurisdiction  of  the  Court  of  Admiralty,  and  con- 
sequently of  the  Central  Criminal  Court.  In  America  it  ap- 
pears, from  the  case  of  The  United  States  v.  Wiltberger,  [5 
Wheaton,  76]  that  it  was  held  that  the  United  States  had  no  ju- 


176  JURISDICTION. 

risdiction  in  the  case  of  the  crime  of  manslaughter  committed 
on  board  a  United  States  vessel  in  the  river  Tigris  in  China; 
but,  as  I  understand  the  American  cases  of  Thomas  v.  Lane  [2 
Sumner,  1]  and  The  United  States  v.  Coombes  [12  Peters,  71], 
a  rule  more  in  conformity  with  the  English  decisions  was  laid 
down;  and  upon  those  authorities  I  take  it  that  the  American 
courts  would  agree  with  us.  It  is  clear,  therefore,  that  a  person 
on  board  a  British  ship  is  amenable  to  the  British  law  just  as 
much  as  a  British  person  on  board  an  American  ship  is  subject 
to  the  American  law.  My  view  is,  that  when  a  person  is  on 
board  a  vessel  sailing  under  the  British  flag,  and  commits  a 
crime,  that  nation  has  a  right  to  punish  him  for  the  crime  com- 
mitted by  him;  and  clearly  the  same  doctrine  extends  to  those 
who  are  members  of  the  crew  of  the  vessel. 

Conviction  affirmed. 

[BARON  CHANNEL  and  JUSTICE  LUSH  delivered  concurring 
opinions.] 


WILDENHUS'  CASE. 

SUPREME  COURT  OF  THE  UNITED  STATES.    1887. 
120  U.  S.  1. 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the 
District  of  New  Jersey. 

[On  board  the  Belgian  steamship  Noordland,  while  lying  at 
its  dock  in  Jersey  City,  New  Jersey,  Wildenhus,  a  Belgian  sub- 
ject and  a  member  of  the  crew,  murdered  another  Belgian 
subject,  who  was  also  a  member  of  the  crew.  Thereupon  he  was 
arrested  by  the  New  Jersey  authorities,  and  the  Belgian  consul 
then  applied  for  his  release  on  a  writ  of  habeas  corpus  and 
surrender  to  the  consul  "to  be  dealt  with  according  to  the  law 
of  Belgium."] 

MR.  CHIEF  JUSTICE  WAITE  .  .  .  delivered  the  opinion  of 
the  court.  .  .  . 

The  question  we  have  to  consider  is,  whether  these  prisoners 
are  held  in  violation  of  the  provisions  of  the  existing  treaty  be- 
tween the  United  States  and  Belgium. 


WILDENHUS'  CASE.  177 

It  is  part  of  the  law  of  civilized  nations  that  when  a  merchant 
vessel  of  one  country  enters  the  ports  of  another  for  the  pur- 
poses of  trade,  it  subjects  itself  to  the  law  of  the  place  to  which 
it  goes,  unless  by  treaty  or  otherwise  the  two  countries  have 
come  to  some  different  understanding  or  agreement ;  for,  as  was 
said  by  Chief  Justice  Marshall  in  The  Exchange,  7  Cranch,  116, 
144,  "it  would  be  obviously  inconvenient  and  dangerous  to 
society,  and  would  subject  the  laws  to  continual  infraction,  and 
the  government  to  degradation,  if  such  .  .  .  merchants  did 
not  owe  temporary  and  local  allegiance,  and  were  not  amenable 
to  the  jurisdiction  of  the  country."  United  States  v.  Diekel- 
man,  92  U.  S.  520;  1  Phillimore's  Int.  Law,  3d  ed.  483,  §  351; 
Twiss'  Law  of  Nations  in  Time  of  Peace,  229,  §  159;  Creasy  'a 
Int.  Law,  167,  §  176;  Halleck's  Int.  Law,  1st  ed.  171.  And  the 
English  judges  have  uniformly  recognized  the  rights  of  the 
courts  of  the  country  of  which  the  port  is  part  to  punish  crimes 
committed  by  one  foreigner  on  another  in  a  foreign  merchant 
ship.  Regina  v.  Cunningham,  Bell.  C.  C.  72 ;  S.  C.  8  Cox  C.  C. 
104;  Regina  v.  Anderson,  11  Cox  C.  C.  198,  204;  S.  C.  L.  R.  1 
C.  C.  161,  165 ;  Regina  v.  Keyn,  13  Cox  C.  C.  403,  486,  525 ; 
S.  C.  2  Ex.  Div.  63,  161,  213.  As  the  owner  has  voluntarily 
taken  his  vessel  for  his  own  private  purposes  to  a  place  within 
the  dominion  of  a  government  other  than  his  own,  and  from 
which  he  seeks  protection  during  his  stay,  he  owes  that  govern- 
ment such  allegiance  for  the  time  being  as  is  due  for  the  pro- 
tection to  which  he  becomes  entitled. 

From  experience,  however,  it  was  found  long  ago  that  it 
would  be  beneficial  to  commerce  if  the  local  government  would 
abstain  from  interfering  with  the  internal  discipline  of  the  ship, 
and  the  general  regulation  of  the  rights  and  duties  of  the  offi- 
cers and  crew  towards  the  vessel  or  among  themselves.  And 
so  by  comity  it  came  to  be  generally  understood  among  civilized 
nations  that  all  matters  of  discipline  and  all  things  done  on 
board  which  affected  only  the  vessel  or  those  belonging  to  her, 
and  did  not  involve  the  peace  or  dignity  of  the  country,  or  the 
tranquillity  of  the  port,  should  be  left  by  the  local  government 
to  be  dealt  with  by  the  authorities  of  the  nation  to  which  the 
vessel  belonged  as  the  laws  of  that  nation  or  the  interests  of 
its  commerce  should  require.  But  if  crimes  are  committed  on 
board  of  a  character  to  disturb  th.e  peace  and  tranquillity  of  the 
country  to  which  the  vessel  has  been  brought,  the  offenders  have 
never  by  comity  or  usage  been  entitled  to  any  exemption  from 


178  JURISDICTION. 

the  operation  of  the  local  laws  for  their  punishment,  if  the  local 
tribunals  see  fit  to  assert  their  authority.  Such  being  the  gen- 
eral public  law  on  this  subject,  treaties  and  conventions  have 
been  entered  into  by  nations  having  commercial  intercourse,  the 
purpose  of  which  was  to  settle  and  define  the  rights  and  duties 
of  the  contracting  parties  with  respect  to  each  other  in  these 
particulars,  and  thus  prevent  the  inconvenience  that  might  arise 
from  attempts  to  exercise  conflicting  jurisdictions.  .  .  . 

[The  learned  judge  then  considers  the  several  types  of  treaty 
entered  into  by  the  United  States  for  the  purpose  of  regulat- 
ing the  jurisdiction  of  consuls  within  its  borders.] 

It  thus  appears  that  at  first  provision  was  made  only  for 
giving  consuls  police  authority  over  the  interior  of  the  ship 
and  jurisdiction  in  civil  matters  arising  out  of  disputes  or 
differences  on  board,  that  is  to  say,  between  those  belonging  to 
the  vessel.  Under  this  police  authority  the  duties  of  the  consuls 
were  evidently  confined  to  the  maintenance  of  order  and  dis- 
cipline on  board.  This  gave  them  no  power  to  punish  for  crimes 
against  the  peace  of  the  country.  In  fajet  the}7  were  expressly 
prohibited  from  interfering  with  the  local  police  in  matters 
of  that  kind.  .  .  . 

In  the  next  conventions  consuls  were  simply  made  judges  and 
arbitrators  to  settle  and  adjust  differences  between  those  on 
board.  This  clearly  related  to  such  differences  between  those 
belonging  to  the  vessel  as  are  capable  of  adjustment  and  settle- 
ment by  judicial  decision  or  by  arbitration,  for  it  simply  made 
the  consuls  judges  or  arbitrators  in  such  matters.  That  would 
of  itself  exclude  all  idea  of  punishment  for  crimes  against  the 
state  which  affected  the  peace  and  tranquillity  of  the  port;  but, 
to  prevent  all  doubt  on  this  subject,  it  was  expressly  provided 
that  it  should  not  apply  to  differences  of  that  character. 

Next  came  a  form  of  convention  which  in  terms  gave  the 
consul  authority  to  cause  proper  order  to  be  maintained  on 
board  and  to  decide  disputes  between  the  officers  and  crew,  but 
allowed  the  local  authorities  to  interfere  if  the  disorders  taking 
place  on  board  were  of  such  a  nature  as  to  disturb  the  public 
tranquillity,  and  that  is  substantially  all  there  is  in  the  conven- 
tion with  Belgium  which  we  have  now  to  consider. 
Each  nation  has  granted  to  the  other  such  local  jurisdiction 
within  its  own  dominion  as  may  be  necessary  to  obtain  order  on 
board  a  merchant  vessel,  but  has  reserved  to  itself  the  right 


WILDENHUS'  CASE.  179 

to  interfere  if  the  disorder  on  board'  is  of  a  nature  to  disturb 
the  public  tranquillity. 

The  treaty  is  part  of  the  supreme  law  of  the  United  States, 
and  has  the  same  force  and  effect  in  New  Jersey  that  it  is 
entitled  to  elsewhere.  If  it  gives  the  consul  of  Belgium  exclu- 
sive jurisdiction  over  the  offence  which  it  is  alleged  has  been 
committed  within  the  territory  of  New  Jersey,  we  see  no  reason 
why  he  may  not  enforce  his  rights  under  the  treaty  by  writ  of 
habeas  corpus  in  any  proper  court  of  the  United  States.  This 
being  the  case,  the  only  important  question  left  for  our  deter- 
mination is  whether  the  thing  which  has  been  done — the  dis- 
order that  has  arisen — on  board  this  vessel  is  of  a  nature  to 
disturb  the  public  peace,  or,  as  some  writers  term  it,  the  "public 
repose"  of  the  people  who  look  to  the  State  of  New  Jersey  for 
their  protection.  If  the  thing  done — "the  disorder,"  as  it  is 
called  in  the  treaty — is  of  a  character  to  affect  those  on  shore 
or  in  the  port  when  it  becomes  known,  the  fact  that  only  those 
on  the  ship  saw  it  wrhen  it  was  done  is  a  matter  of  no  moment. 
Those  who  are  not  on  the  vessel  pay  no  special  attention  to  the 
mere  disputes  or  quarrels  of  the  seamen  while  on  board,  whether 
they  occur  under  deck  or  above.  Neither  do  they  as-a  rule  care 
for  anything  done  on  board  which  relates  only  to  the  discipline 
of  the  ship,  or  to  the  preservation  of  order  and  authority.  Not 
so,  however,  with  crimes  which  from  their  gravity  awaken  a 
public  interest  as  soon  as  they  become  known,  and  especially 
those  of  a  character  which  every  civilized  nation  considers  itself 
bound  to  provide  a  severe  punishment  for  when  committed 
within  its  own  jurisdiction.  In  such  cases  inquiry  is  certain  to 
be  instituted  at  once  to  ascertain  how  or  why  the  thing  was 
done,  and  the  popular  excitement  rises  or  falls  as  the  news 
spreads  and  the  facts  become  known.  It  is  not  alone  the  pub- 
licity of  the  act,  or  the  noise  and  clamor  which  attends  it,  that 
fixes  the  nature  of  the  crime,  but  the  act  itself.  If  that  is  of 
a  character  to  awaken  public  interest  when  it  becomes  known, 
it  is  a  "disorder"  the  nature  of  which  is  to  affect  the  commun- 
ity at  large,  and  consequently  to  invoke  the  power  of  the  local 
government  whose  people  have  been  disturbed  by  what  was 
done.  The  very  nature  of  such  an  act  is  to  disturb  the  quiet 
of  a  peaceful  community,  and  to  create,  in  the  language  of  the 
treaty,  a  "disorder"  which  will  "disturb  tranquillity  and  pub- 
lic order  on  shore  or  in  the  port. ' '  The  principle  which  governs 
the  whole  matter  is  this:  Disorders  which  disturb  only  the 


180  JURISDICTION. 

peace  of  the  ship  or  those  on  board  are  to  be  dealt  with 
exclusively  by  the  sovereignty  of  the  home  of  the  ship,  but 
those  which  disturb  the  public  peace  may  be  suppressed,  and,  if 
need  be,  the  offenders  punished  by  the  proper  authorities  of  the 
local  jurisdiction.  It  may  not  be  easy  at  all  times  to  determine 
to  which  of  the  two  jurisdictions  a  particular  act  of  disorder 
belongs.  Much  will  undoubtedly  depend  on  the  attending  cir- 
cumstances of  the  particular  case,  but  all  must  concede  that 
felonious  homicide  is  a  subject  for  the  local  jurisdiction,  and 
that  if  the  proper  authorities  are  proceeding  with  the  case  in 
a  regular  way,  the  consul  has  no  right  to  interfere  to  prevent 
it.  That,  according  to  the  petition  for  the  habeas  corpus,  is 
this  case. 

This  is  fully  in  accord  with  the  practice  in  France,  where  the 
government  has  been  quite  as  liberal  towards  foreign  nations  in 
this  particular  as  any  other,  and  where,  as  we  have  seen  in  the 
cases  of  The  Sally  and  The  Newton,  by  a  decree  of  the  Council 
of  State,  representing  the  political  department  of  the  govern- 
ment, the  French  courts  were  prevented  from  exercising  juris- 
diction. But  afterwards,  in  1859,  in  the  case  of  Jally,  the  mate 
of  an  American  merchantman  who  had  killed  one  of  the  crew 
and  severely  wounded  another  on  board  the  ship  in  the  port  of 
Havre,  the  Court  of  Cassation,  the  highest  judicial  tribunal  of 
France,  upon  full  consideration  held,  while  the  Convention  of 
1853  was  in  force,  that  the  French  courts  had  rightful  juris- 
diction, for  reasons  which  sufficiently  appear  in  the  following 
extract  from  its  judgment : 

"Considering  that  it  is  a  principle  of  the  law  of  nations  that 
every  state  has  sovereign  jurisdiction  throughout  its  territory; 

"Considering  that  by  the  terms  of  Article  3  of  the  Code 
Napoleon  the  laws  of  police  and  safety  bind  all  those  who 
inhabit  French  territory,  and  that  consequently  foreigners,  even 
transeuntes,  find  themselves  subject  to  those  laws; 

"Considering  that  merchant  vessels  entering  the  port  of  a 
nation  other  than  that  to  which  they  belong  cannot  be  with- 
drawn from  the  territorial  jurisdiction,  in  any  case  in  which 
the  interest  of  the  state  of  which  that  port  forms  part  finds  itself 
concerned,  without  danger  to  good  order  and  to  the  dignity  of 
the  government; 

"Considering  that  every  state  is  interested  in  the  repression 
of  crimes  and  offences  that  may  be  committed  in  the  ports  of  its 
territory,  not  only  by  the  men  of  the  ship's  company  of  a 


NOTE.  181 

foreign  merchant  vessel  towards  men  not  forming  part  of  that 
company,  but  even  by  men  of  the  ship's  company  among  them- 
selves, whenever  the  act  is  of  a  nature  to  compromise  the  tran- 
quillity of  the  port,  or  the  intervention  of  the  local  authority  is 
invoked,  or  the  act  constitutes  a  crime  of  common  law,"  (droit 
commun,  the  law  common  to  all  civilized  nations),  "the  gravity 
>of  which  does  not  permit  any  nation  to  leave  it  unpunished, 
without  impugning  its  rights  of  jurisdictional  and  territorial 
sovereignty,  because  that  crime  is  in  itself  the  most  manifest 
as  well  as  the  most  flagrant  violation  of  the  laws  which  it  is 
the  duty  of  every  nation  to  cause  to  be  respected  in  all  parts  of 
its  territory."  1  Ortolan,  Diplomatic  de  la  Mer  (4th  ed.),  pp. 
455,  456;  Sirey  (N.  s.),  1859,  p.  189. 

The  judgment  of  the  Circuit  Court  is  affirmed. 

NOTE. — Much  confusion  of  thought  as  to  the  status  of  a  merchant 
ship  in  the  territorial  waters  of  a  foreign  state  has  been  caused  by 
describing  a  merchant  vessel  as  a  part  of  the  territory  of  the  state 
to  which  it  belongs.  At  best  this  language  is  only  figurative,  and 
when  it  is  applied  literally,  it  leads  to  absurd  results.  In  Scharren- 
berg  v.  Dollar  Steamship  Co.  et  al.  (1917),  245  U.  S.  122,  an  attempt 
was  made  to  show  that  a  Chinese  seaman  shipped  upon  an  Amer- 
ican vessel  at  Shanghai  thereby  entered  American  territory  and  hence 
violated  the  Chinese  exclusion  laws.  In  overruling  this  contention 
the  Supreme  Court  characterized  it  as  "fanciful  and  unsound"  and 
said: 

For  the  purposes  of  jurisdiction  a  ship,  even  on  the  high 
seas,  is  often  said  to  be  a  part  of  the  territory  of  the  nation 
whose  flag  it  flies.  But  in  the  physical  sense  this  expression 
is  obviously  figurative,  and  to  expand  the  doctrine  to  the 
extent  of  treating  seamen  employed  on  such  a  ship  as  work- 
ing in  the  country  of  its  registry  is  quite  impossible. 

A  foreign  merchant  ship  in  a  foreign  port  submits  itself  to  the 
local  jurisdiction  in  the  same  way  that  a  foreign  individual  becomes 
subject  to  the  local  law  and  under  obligation  to  obey  it,  United  States 
v.  Diekelman  (1876),  92  U.  S.  520;  United  States  v.  Bull  (1910),  15 
Philippines,  7.  The  view  adopted  by  Chief  Justice  Waite  in  Wilden- 
hus'  Case  (1887),  120  U.  S.  1,  had  been  previously  set  forth  by  Sir 

Robert  Phillmore  in  Regina  v.  Keyn  (1876),  2  Ex.  Div.  63,  82:   , 

I 

A  foreign  merchant  vessel  going  into  a  port  of  a  foreign 
country   subjects   herself   to   the    ordinary   law   of   the   place ' 
during  her   commorancy   there;    she   is   as  much   a   subditus 
temporarius  as  the   individual  who  visits  in  the  interior  of 
the  country  for  the  purpose  of  business  or  pleasure. 
While   all    countries    adhere    to    the   fundamental    principle   of    the 
subjection  of  foreign  merchant  vessels  to  the  local  jurisdiction,  they 


182  JURISDICTION. 

differ  as  to  the  exent  to  which  public  policy  and  international  comity 
require  them  to  refrain  from  exercising  their  jurisdiction.  The  prac- 
tices of  Great  Britain  and  the  United  States  are  substantially  iden- 
tical. In  the  case  of  civil  controversies  or  minor  misdemeanors 
arising  on  foreign  merchant  vessels,  the  dignity  and  tranquillity  of 
the  port  are  touched  so  indirectly,  if  touched  at  all,  that  the  local 
tribunals  will  generally  decline  to  exercise  jurisdiction  unless  it 
can  be  shown  that  their  refusal  will  result  in  a  failure  of  justice, 
The  Bee  (1836),  Federal  Cases,  no.  1219;  Gonzales  v.  Minor  (1852), 
Ib.  no.  5330.  In  The  Topsy  (1890),  44  Fed.  631,  the  court,  against 
the  written  protest  of  the  British  consul,  took  jurisdiction  of  a  libel 
for  wages  on  the  ground  that  if  the  vessel  should  depart,  the  seaman, 
who  had  been  discharged,  would  be  subjected  to  unnecessary  hardship 
in  the  enforcement  of  his  claim.  Courts  are  the  more  free  to  decline 
jurisdiction  since  by  the  comity  of  nations  the  master  of  a  vessel  is 
allowed  in  port  practically  the  same  authority  over  his  vessel  which 
he  possesses  at  sea,  24  Opinions  of  the  Attorney  General,  531.  The 
littoral  state  is  the  sole  judge  in  each  instance  as  to  whether  or  not 
it  will  remit  the  complainant  to  the  tribunals  of  the  flag  state.  If 
it  refrains  from  exercising  its  authority,  it  does  not  thereby  waive  it  or 
admit  any  right  on  the  part  of  the  ship  to  claim  immunity.  In  The 
Nina  (1868)  17  L.  T.  R.  585,  it  was  held  that  even  an  express  provision 
in  the  ship's  articles  by  which  the  seaman  bound  himself  to  submit 
to  the  tribunals  of  the  flag  state  does  not  oust  the  local  jurisdiction,, 
and  if  .the  consul  of  the  flag  state  protests,  the  court  will  exercise 
its  discretion.  In  Ex  parte  Newman  (1872),  14  Wallace,  152,  Justice 
Clifford  said: 

Admiralty  courts,  it  is  said,  will  not  take  jurisdiction  in 
such  a  case  except  where  it  is  manifestly  necessary  to  do  so 
to  prevent  a  failure  of  justice,  but  the  better  opinion  is  that, 
independent  of  treaty  stipulation,  there  is  no  constitutional 
or  legal  impediment  to  the  exercise  of  jurisdiction  in  such  a 
case.  Such  courts  may,  if  they  see  fit,  take  jurisdiction 
in  such  a  case,  but  they  will  not  do  so  as  a  general  rule 
without  the  consent  of  the  representative  of  the  country 
to  which  the  vessel  belongs,  where  it  is  practicable  that  the 
representative  should  be  consulted.  His  consent,  however,  is 
not  a  condition  of  jurisdiction,  but  it  is  regarded  as  a  mate- 
rial fact  to  aid  the  court  in  determining  the  question  of  dis- 
cretion, whether  jurisdiction  in  the  case  ought  or  ought  not 
to  be  exercised. 

Domestic  legislation  however  may  require  the  courts  to  take  juris- 
diction over  cases  in  which  they  would  otherwise  not  interfere.  Tbe 
Seamen's  Act  of  1915,  38  S.  1164,  prohibits  the  payment  to  any  sea- 
man of  wages  in  advance  of  their  being  earned,  and  provides  that 
such  payment  shall  not  constitute  a  defense  to  a  libel  or  action 
for  their  recovery.  In  Patterson  v.  Bark  Eudora  (1903),  190  U.  S. 
169,  this  was  held  to  apply  to  a  foreign  vessel  shipping  seamen  in 
an  American  port,  but  in  Sandberg  v.  McDonald  (1918),  248  U.  S. 


NOTE.  183 

185,  it  was  held  that  wages  advanced  to  the  crew  of  a  British  ves- 
sel in  Liverpool  at  the  date  of  sailing  could  be  deducted  from  the 
wages  due  when  the  vessel  arrived  in  the  United  States,  and  like- 
wise as  to  advances  made  to  seamen  shipping  on  an  American  vessel 
in  a  foreign  port,  although  Congress  undoubtedly  has  power  to  con- 
trol such  advances,  Neilson  v.  Rhine  Steamship  Co.  (1918),  248  U.  S. 
The  Seamen's  Act,  sec.  4,  also  provides  that  the  right  which 
it  gives  to  demand  at  certain  times  the  payment  of  one-half  the  wages 
then  earned  "shall  apply  to  seamen  on  foreign  vessels  while  in  the 
harbors  of  the  United  States,  and  the  courts  of  the  United  States 
shall  be  open  to  such  seamen  for  its  enforcement."  By  virtue  of 
this  provision  it  was  held  in  Strathearn  Steamship  Co.  Ltd.  v.  Dillon 
(1920),  252  U.  S.  348,  that  a  British  seaman  who  had  shipped  on  a 
British  vessel  in  Liverpool  under  a  contract  which  provided  that 
wages  should  be  paid  only  at  the  end  of  the  voyage  could  demand 
payment  at  a  port  in  the  United  States  of  one-half  of  the  wages  then 
owing  him.  This  provision  reverses  the  rule  of  international  comity 
under  which  the  local  courts  have  declined  jurisdiction  over  civil 
controversies  affecting  only  the  ship  and  its  crew,  and  affords  to 
seamen  the  means  of  nullifying  the  contracts  into  which  they  en- 
tered in  another  jurisdiction  at  the  beginning  of  the  voyage. 

In  some  cases  the  exercise  of  local  jurisdiction  may  result  in 
giving  to  the  complainant  a  remedy  which  was  not  open  to  him  in 
his  own  tribunals.  In  The  Milford  (1858),  1  Swabey,  362,  a  foreign 
master  was  allowed  to  bring  an  action  against  the  ship  for  wages 
although  the  flag  state  gave  him  no  remedy  against  the  ship.  On 
the  other  hand,  if  the  littoral  state  refrains  from  taking  jurisdiction, 
it  may  appear  to  disregard  the  rights  of  its  own  citizens. 

Offenses  of  exceptional  gravity  are  held  to  constitute  such  a  moral 
disturbance  of  the  tranquillity  of  the  port  as  to  require  the  exercise 
of  local  jurisdiction  even  though  at  the  time  of  their  commission 
they  may  not  be  known  outside  of  the  ship.  In  Regina  v.  Cunning 
ham  (1859),  Bell,  Crown  Cases,  72,  seamen  who  murdered  a  member 
of  the  crew  of  an  American  vessel  in  Bristol  Channel,  ten  miles  from 
the  nearest  land  but  in  waters  subject  to  British  jurisdiction,  were 
tried  and  convicted  in  a  British  court.  As  appears  from  Regina  v. 
Anderson  "(1868),  11  Cox,  Criminal  Cases,  198,  Great  Britain  also  as- 
serts jurisdiction  over  offences  committed  on  British  merchant  ships 
in  foreign  waters.  In  The  Queen  v.  Carr  (1882),  L.  R.  10  Q.  B.  D.  76, 
it  was  held  that  a  crime  committed  on  a  British  ship  in  the  port 
of  Rotterdam,  some  eighteen  miles  from  the  open  sea,  was  cognizable 
in  a  British  court.  The  same  rule  prevails  in  the  United  States,  and 
an  offense  committed  on  an  American  vessel  in  foreign  waters  is 
justiciable  in  an  American  court  and  is  governed  by  American  law, 
United  States  v.  Furlong  (1820),  5  Wheaton,  184;  Crapo  v.  Kelly 
(1873),  16  Wallace,  610;  United  States  v.  Rodgers  (1893),  150  U.  S. 
249  (applying  Revised  Statutes,  sec.  5346);  Thompson  T.  &  W.  Asso- 
ciation v.  McGregor  (1913),  207  Fed.  209.  Such  jurisdiction  is  con- 
current with  that  of  the  state  where  the  offense  took  place  and  its 
exercise  is  dependent  upon  obtaining  possession  of  the  offender. 


184  JURISDICTION. 

France  and  a  considerable  number  of  less  important  maritime  coun- 
tries qualify  the  British  rule  of  the  general  subjection  of  foreign 
vessels  to  the  local  authorities  by  definitely  renouncing  jurisdiction 
over  their  internal  discipline  and  order  and  even  over  the  most 
serious  crimes.  This  is  done  in  the  expectation  that  the  flag  state 
will  take  whatever  action  is  necessary.  As  a  means  to  that  end 
France  has  entered  into  a  large  number  of  conventions  with  other 
states  by  which  their  consuls  are  vested  with  wide  powers  over 
vessels  in  French  waters.  Among  these  was  the  treaty  of  February 
14,  1788  with  the  United  States,  which  authorized  the  American  con- 
suls to  exercise  complete  control  and  civil  jurisdiction  over  American 
vessels  in  French  waters,  but  retained  under  the  local  authorities 
any  crime  or  violation  of  public  tranquillity.  It  was  while  this  con- 
vention was  in  force  that  the  well  known  cases  of  The  Sally  and 
The  Newton  arose.  Both  were  American  vessels  in  French  ports. 
The  mate  of  The  Sally,  in  what  purported  to  be  an  attempt  to  ad- 
minister discipline,  wounded  one  of  the  crew.  A  seaman  belonging 
to  the  Newton  assaulted  another  member  of  the  crew  in  one  of  the 
ship's  boats.  Both  the  local  authorities  and  the  American  consul 
claimed  jurisdiction.  The  Conseil  d'fitat  upheld  the  consul  on  the 
ground  that  the  local  authorities  ought  not  to  interfere  unless  "the 
peace  and  tranquillity  of  the  port"  had  been  disturbed.  This  con- 
troversy gave  rise  to  the  famous  Avis  du  Conseil  <V£tat  of  November 
6,  1806,  which  was  founded  upon  two  principles:  (1)  The  local  au- 
thorities should  not  concern  themselves  with  the  internal  discipline 
of  foreign  merchant  ships.  (2)  The  local  authorities  should  not 
concern  themselves  with  serious  offenses  or  crimes  committed  on 
a  foreign  merchant  ship  unless  their  assistance  has  been  invoked 
or  unless  there  has  been  an  actual  disturbance  of  the  tranquillity 
of  the  port.  Pursuant  to  these  principles,  in  the  Forsattning  (1837), 
Phillimore,  I.  485,  the  French  Government  ordered  a  member  of  the 
crew  of  a  Swedish  vessel  who  was  charged  with  murder  to  be  sur- 
rendered to  the  master  of  the  vessel.  In  1859,  however,  the  Cour 
de  Cassation,  in  the  case  of  Jally,  mate  of  the  American  ship  Tempest, 
held  that  the  local  authorities  could  take  jurisdiction  over  a  murder 
committed  on  an  American  vessel  in  French  waters.  The  gravity 
of  the  crime  rather  than  its  local  effect  was  the  basis  of  the  decision. 
This  was  an  important  qualification  of  the  Avis  of  1806,  but  it  did 
not  bring  the  French  view  into  complete  harmony  with  that  of  Great 
Britain  and  America,  for  the  offender  had  been  voluntarily  sur- 
rendered and  the  American  consul  had  waived  his  rights  under  the 
treaty  of  1853.  In  the  case  of  French  vessels  'in  foreign  waters, 
France  asserts  exclusive  jurisdiction  of  all  offenses  committed  upon 
them  and  does  not  recognize  the  concurrent  authority  of  the  littoral 
state.  It  is  the  French  view  that  the  flag  state  shall  be  primarily 
responsible  for  the  good  order  of  its  vessels  and  their  companies. 

Germany  adheres  to  the  Avis  of  1806,  and  when  an  attempt  was 
made  by  British  officers  in  1909  to  arrest  a  fugitive  offender  on  a 
German  vessel  which  called  at  a  British  port,  th?  refusal  of  the 
captain  to  permit  the  removal  of  the  offender  was  Sustained  by  the 


NOTE.  185 

German  Government  on  the  ground  that  the  territorial  authorities 
had  no  right  to  take  coercive  measures  on  a  foreign  merchant  ship 
without  the  consent  of  the  flag  state. 

May  a  foreign  vessel  bring  from  abroad  and  use  in  territorial 
waters  articles  which  are  protected  by  a  patent  in  the  littoral  state? 
When  a  Dutch  vessel  equipped  with  a  propeller  covered  by  an  English 
patent  entered  an  English  harbor,  the  patentee  obtained  an  injunc- 
tion against  its  use,  Caldwell  v.  Van  Vlissingen  (1851),  9  Hare,  415, 
but  an  act  of  Parliament,  15  &  16  Vic.  ch.  83,  sec.  26,  soon  after 
exempted  foreign  vessels  from  the  operation  of  British  patent  laws. 
In  a  similar  case,  Brown  v.  Duchesne  (1857),  18  Howard,  183,  the 
United  States  Supreme  Court  held  that  Congress  did  not  intend  its 
patent  laws  to  apply  to  foreign  vessels. 

When  slavery  existed,  the  entry  of  a  vessel  carrying  slaves  into 
a  country  where  slavery  was  forbidden  was  the  source  of  many 
controversies.  The  littoral  state  was  inclined  to  take  the  view  that 
it  could  not  be  expected  to  assist  in  the  maintenance  of  an  institution 
which  its  laws  did  not  sanction.  In  the  notable  case  of  the  Maria 
Luz,  the  Emperor  of  Russia  decided  as  arbitrator  in  1875  that  Japan 
was  within  its  rights  when  it  released  Chinese  coolies  on  a  Peruvian 
vessel  which  had  put  in  at  Yokohama  on  its  way  from  Macao  to  Peru. 
The  Japaness  authorities  held  that  the  status  of  the  coolies  was  vir- 
tually a  slave  status,  whatever  might  be  its  name,  and  as  slavery 
was  forbidden  by  the  law  of  the  Empire,  the  coolies  were  removed 
from  the  vessel  and  returned  to  China  at  the  expense  of  Japan. 
Annuaire  de  TInstltut  de  Droit  International,  1877,  353;  Moore,  Int. 
Arb.,  Ill,  5034.  For  a  contrary  decision  see  Moore,  Digest,  II,  350. 

Since  the  adoption  of  prohibition  in  the  United  States,  the  ques- 
tion of  the  jurisdiction  of  the  littoral  state  over  a  foreign  merchant 
vessel  has  gained  a  new  importance.  If  a  British  vessel  bound  from 
Liverpool  to  Rio  de  Janeiro  with  a  stock  of  liquors  for  the  use  of 
its  passengers  stops  at  New  York,  the  following  questions  may  arise 
while  the  vessel  is  in  port:  (1)  May  liquor  be  sold  to  visitors  to 
the  vessel?  (2)  May  it  be  sold  before  the  vessel's  departure  to  per- 
sons who  come  on  board  at  New  York  as  passengers?  (3)  May  it  be 
sold  to  the  passengers  who  are  bound  from  Liverpool  to  Rio  de 
Janeiro?  (4)  May  liquor  which  is  found  upon  the  vessel,  even  though 
locked  up  and  inaccessible  during  the  vessel's  stay,  be  seized  and 
confiscated? 

In  a  number  of  cases  persons  accused  of  political  offenses  have 
claimed  a  right  of  asylum  on  foreign  merchant  vessels.  As  the  sub- 
jection of  the  vessel  to  the  jurisdiction  of  the  littoral  state  involves 
the  right  to  arrest  persons  accused  of  non-political  crimes  so  long 
as  the  orderly  processes  prescribed  by  the  local  law  are  observed, 
the  fact  that  the  offense  charged  is  a  political  one  does  not  altei 
the  jurisdiction  of  the  local  authorities.  This  view  was  applied 
by  the  British  Government  in  Sotelo's  case,  Moore,  Digest,  II,  856, 
and  by  the  American  Government  in  the  cases  of  Gomez  (Ib.  II,  867) 
and  Bonilla  (Ib.  II,  879).  The  doctrine  of  Secretary  Elaine  in  the  Bar- 
rundia  case  (Ib.  II,  872)  has  found  little  support.  See  also  J.  B. 


L86  JURISDICTION. 

Moore,  "Asylum  in  Legations  and  Consulates  and  in  Vessels,"  Pol. 
Sci.  Quar.  VII,  1,  197,  397.  The  British  consular  regulations  as  set 
forth  in  the  General  Instructions  for  H.  M.  Consular  Officers,  1907, 
express  the  view  generally  held  as  to  the  right  of  asylum  on  merchant 
ships.  They  provide: 

No  person  seeking  refuge  on  board  such  ships,  with  a  view  to 
evading  the  local  laws,  can  be  protected  against  the  operation 
of  those  laws.  The  ship  affords  no  harbour  to  any  person 
whether  forming  part  of  its  crew  or  not,  liable  legally  to  be 
taken  into  custody. 

See  van  Praag,  Juridiction  et  Droit  International  Public;  Hall, 
Foreign  Powers  and  Jurisdiction  of  the  British  Crown;  Travers,  Le 
Droit  Penal  International  et  sa  Mise  en  Oevre  en  Temps  de  Paix  et 
en  Temps  de  Guerre;  Charteris,  "The  Legal  Position  of  Merchantmen 
in  Foreign  Ports  and  National  Waters,"  British  Year  Book  of  Inter- 
national Law,  1920-21,  45;  Neilsen,  "The  Lack  of  Uniformity  in  the 
Law  and  Practice  of  States  with  Regard  to  Merchant  Vessels,"  Am. 
Jour.  Int.  Law,  XIII,  1;  "Jurisdiction  over  Vessels,"  Harvard  Law 
Review,  XXVII,  268;  8  Opinions  of  the  Attorney  General  (1856),  73; 
Cobbett,  Cases  and  Opinions,  I,  289;  Bonfils  (Fauchille),  sec.  624; 
Hyde,  I,  393;  Moore,  Digest,  II,  272,  855. 


SECTION  6.    JURISDICTION  DERIVED  FROM  BELLIGERENT 
OCCUPATION. 

THE  UNITED  STATES  v.  RICE. 

SUPREME  COUBT  OF  THE  UNITED  STATES.    1819. 
4  Wheaton,  246. 

Error  to  the  Circuit  Court  of  Massachusetts. 

MR.  JUSTICE  STORY  delivered  the  opinion  of  the  Court. 

The  single  question  arising  on  the  pleadings  in  this  case  is, 
whether  goods  imported  into  Castine  during  its  occupation  by 
the  enemy  are  liable  to  the  duties  imposed  by  the  revenue  laws 
upon  goods  imported  into  the  United  States.  It  appears,  by  the 
pleadings,  that  on  the  first  day  of  September,  1814,  Castine  was 
captured  by  the  enemy,  and  remained  in  his  exclusive  possession, 
under  the  command  and  control  of  his  military  and  naval  forces, 
until  after  the  ratification  of  the  treaty  of  peace  in  February, 
1815.  During  this  period,  the  British  government  exercised  all 
civil  and  military  authority  over  the  place;  and  established  a 


UNITED  STATES  v.  RICE.  187 

custom-house,  and  admitted  goods  to  be  imported,  according  to 
regulations  prescribed  by  itself,  and,  among  others,  admitted 
the  goods  upon  which  duties  are  now  demanded.  These  goods 
remained  at  Castine  until  after  it  was  evacuated  by  the  enemy ; 
and,  upon  the  reestablishment  of  the  American  government,  the 
collector  of  the  customs,  claiming  a  right  to  American  duties  on 
the  goods,  took  the  bond  in  question  from  the  defendant,  for  the 
security  of  them. 

Under  these  circumstances,  we  are  all  of  opinion,  that  the 
claim  for  duties  cannot  be  sustained.  By  the  conquest  and  mili- 
tary occupation  of  Castine,  the  enemy  acquired  that  firm  pos- 
session which  enabled  him  to  exercise  the  fullest  rights  of  sover- 
eignty over  that  place.  The  sovereignty  of  the  United  States 
over  the  territory  was,  of  course,  suspended,  and  the  laws  of  the 
United  States  could  no  longer  be  rightfully  enforced  there,  or  be 
obligatory  upon  the  inhabitants  who  remained  and  submitted  to 
the  conquerors.  By  the  surrender  the  inhabitants  passed  under 
a  temporary  allegiance  to  the  British  government,  and  were 
bound  by  such  laws,  and  such  only,  as  it  chose  to  recognize  and 
impose.  From  the  nature  of  the  case,  no  other  laws  could  be 
obligatory  upon  them,  for  where  there  is  no  protection  or  allegi- 
ance or  sovereignty,  there  can  be  no  claim  to  obedience.  Castine 
was,  therefore,  during  this  period,  so  far  as  respected  our  rev- 
enue laws,  to  be  deemed  a  foreign  port ;  and  goods  imported  into 
it  by  the  inhabitants,  were  subject  to  such  duties  only  as  the 
British  government  chose  to  require.  Such  goods  were  in  no 
correct  sense  imported  into  the  United  States.  The  subsequent 
evacuation  by  the  enemy,  and  resumption  of  authority  by  the 
United  States,  did  not,  and  could  not,  change  the  character  of 
the  previous  transactions.  The  doctrines  respecting  the  jus 
postliminii  are  wholly  inapplicable  to  the  case.  The  goods  were 
liable  to  American  duties,  when  imported,  or  not  at  all.  That 
they  were  not  so  liable  at  the  time  of  importation  is  clear  from 
what  has  been  already  stated;  and  when,  upon  the  return  of 
peace,  the  jurisdiction  of  the  United  States  was  re-assumed, 
they  were  in  the  same  predicament  as  they  would  have  been  if 
Castine  had  been  a  foreign  territory  ceded  by  treaty  to  the 
United  States,  and  the  goods  had  been  previously  imported 
there.  In  the  latter  case,  there  would  be  no  pretence  to  say  that 
American  duties  could  be  demanded;  and,  upon  principles  of 
public  or  municipal  law,  the  cases  are  not  distinguishable.  The 
authorities  cited  at  the  bar  would,  if  there  were  any  doubt,  be 


188  JURISDICTION. 

decisive  of  the  question.    But  we  think  it  too  clear  to  require 
any  aid  from  authority. 

Judgment  affirmed,  with  costs. 


THE  GERASIMO. 

JUDICIAL  COMMITTEE  OF  THE  PRIVY  COUNCIL  OF  GEEAT  BRITAIN.     1857. 
11  Moore,  Privy  Council,  88. 

Appeal  from  the  High  Court  of  Admiralty  of  England. 

[In  the  Crimean  War,  the  Gerasimo,  a  ship  under  the  Wal- 
lachian  flag,  with  a  cargo  of  corn  belonging  to  residents  of  Galatz, 
in  Moldavia,  was  captured  by  the  British  when  coming  out  of 
the  Danube,  the  mouth  of  which  was  then  blockaded  by  the 
British  fleet.  When  the  cargo  was  shipped  the  Russians,  were 
in  possession  of  Moldavia  and  Wallachia,  but  disclaimed  any  in- 
tention of  altering  their  political  status  or  of  incorporating  them 
in  the  Russian  empire.  The  Court  of  Admiralty  however  con- 
demned the  cargo  on  the  ground  that  it  belonged  to  inhabitants 

of  enemy  territory.] 

i 

The  Right  Hon.  T.  PEMBERTON  LEIGH   [LORD  KINGSDOWN]  : 

Upon  the  present  appeal  the  first  question  is,  whether  the 
owners  of  the  cargo,  in  regard  to  this  claim,  are  to  be  considered 
as  alien  enemies;  and  for  this  purpose  it  will  be  necessary  to 
examine  carefully  both  the  principles  of  law  which  are  to  govern 
the  case,  and  the  nature  of  the  possession  which  the  Russians 
held  of  Moldavia  at  the  time  of  this  shipment. 

Upon  the  general  principles  of  law  applicable  to  this  subject 
there  can  be  no  dispute.  The  national  character  of  a  trader  is 
to  be  decided  for  the  purposes  of  the  trade,  by  the  national 
character  of  the  place  in  which  it  is  carried  on.  If  a  war  breaks 
out,  a  foreign  merchant  carrying  on  trade  in  a  belligerent  coun-  ' 
try  has  a  reasonable  time  allowed  him  for  transferring  himself 
and  his  property  to  another  country.  If  he  does  not  avail  him- 
self of  the  opportunity,  he  is  to  be  treated,  for  the  purposes  of 
the  trade,  as  a  subject  of  the  Power  under  whose  dominion  he 
carries  it  on,  and,  of  course,  as  an  enemy  of  those  with  whom 


THE  GERASIMO.  189 

^ 

that  Power  is  at  war.  Nothing  can  be  more  just  than  this  prin- 
ciple; but  the  whole  foundation  of  it  is,  that  the  country  in 
which  the  merchant  trades  is  enemy's  country. 

Now  the  question  is,  what  are  the  circumstances  necessary  to 
convert  friendly  or  neutral  territory  into  enemy's  territory? 
For  this  purpose,  is  it  sufficient  that  the  territory  in  question 
should  be  occupied  by  a  hostile  force,  and  subjected,  during  its 
occupation,  to  the  control  of  the  hostile  Power,  so  far  as  such 
Power  may  think  fit  to  exercise  control ;  or  is  it  necessary  that, 
either  by  cession  or  conquest,  or  some  other  means,  it  should, 
either  permanently  or  temporarily,  be  incorporated  with,  and 
form  part  of  the  dominions  of  the  invader  at  the  time  when  the 
question  of  national  character  arises? 

It  appears  to  their  Lordships  that  the  first  proposition  cannot/ 
be  maintained.  It  is  impossible  for  any  Judge,  however  able 
and  learned,  to  have  always  present  to  his  mind  all  the  nice  dis- 
tinctions by  which  general  rules  are  restricted ;  and  their  Lord- 
ships are  inclined  to  think  that,  if  the  authorities  which  were 
cited  and  so  ably  commented  upon  at  this  Bar  had  been  laid 
before  the  Judge  of  the  Court  below,  he  would,  perhaps,  have 
qualified  in  some  degree  the  doctrine  attributed  to  him  in  the 
judgment  to  which  we  have  referred. 

"With  respect  to  the  meaning  of  the  term  "  dominions  of  the 
enemy,"  and  what  is  necessary  to  constitute  dominion,  Lord 
Stowell  has  in  several  cases  expressed  his  opinion.  In  the  case 
of  The  Fama  (5  Rob.  115),  he  lays  it  down  that  in  order  to 
complete  the  right  of  property,  there  must  be  both  right  to 'the 
thing  and  possession  of  it;  both  jus  ad  rem  and  jus  in  re. 
"This,"  he  observes,  "is  the  general  law  of  property,  and  ap- 
plies, I  conceive,  no  less  to  the  right  of  territory  than  to  other 
rights.  Even  in  newly-discovered  countries,  when  a  title  is 
meant  to  be  established,  for  the  first  time,  some  act  of  possession 
is  usually  done  and  proclaimed  as  a  notification  of  the  fact. 
In  transfer,  surely,  when  the  former  rights  of  others  are  to  be 
superseded  and  extinguished,  it  cannot  be  less  necessary  that 
such  a  change  should  be  indicated  by  some  public  acts,  that 
all  who  are  deeply  interested  in  the  event,  as  the  inhabitants 
of  such  Settlements,  may  be  informed  under  whose  dominion 
and  under  what  laws  they  are  to  live." 

The  importance  of  this  doctrine  will  appear  when  the  facts 
with  respect  to  the  occupation  of  the  Principalities  come  to  be 
examined. 


190  JURISDICTION. 

That  the  national  character  of  a  place  is  not  changed  by  the 
mere  circumstance  that  it  is  in  the  possession  and  under  the 
control  of  a  hostile  force,  is  a  principle  held  to  be  of  such  im- 
portance that  it  was  acted  upon  by  the  Lords  of  Appeal  in  1808, 
in  the  St.  Domingo  cases  of  The  ' '  Dart ' '  and  ' '  Happy  Couple, ' ' 
when  the  rule  operated  with  extreme  hardship. 

In  the  case  of  The  "Manilla"  (1  Edw.  3),  Lord  Stowell  gives 
the  following  account  of  those  decisions:  "Several  parts  of  it 
[the  Island  of  St.  Domingo]  had  been  in  the  actual  possession  of 
insurgent  negroes,  who  had  detached  them,  as  far  as  actual 
occupancy  could  do,  from  the  mother  country  of  France  and  its 
authority,  and  maintained,  within  those  parts  at  least,  an  inde- 
pendent government  of  their  own.  And  although  this  new 
power  had  not  been  directly  and  formally  recognized  by  any 
express  treaty,  the  British  Government  had  shown  a  favourable 
disposition  towards  it  on  the  ground  of  its  common  opposition 
to  France,  and  seemed  to  tolerate  an  intercourse  that  carried 
with  it  a  pacific  and  even  friendly  complexion.  It  was  con- 
tended, therefore,  that  St.  Domingo  could  not  be  considered  as  a 
colony  of  the  enemy.  The  Court  of  Appeal,  however,  decided, 
though  after  long  deliberation,  and  with  much  expressed  re- 
luctance, that  nothing  had  been  declared  or  done  by  the  British 
Government  that  could  authorize  a  British  tribunal  to  consider 
this  Island  generally,  or  parts  of  it  (notwithstanding  a  Power 
hostile  to  France  had  established  itself  within  it,  to  that  degree 
of  force,  and  with  that  kind  of  allowance  from  some  other  States) , 
as  being  other  than  still  a  colony,  or  parts  of  a  colony  of  the 
enemy.  There  can  be  no  doubt  that  the  strict  principle  of  that 
decision  was  correct." 

On  the  other  hand,  when  places  in  a  friendly  country  have 
been  seized  by,  and  are  in  the  possession  of  the  enemy,  the  same 
doctrine  has  been  held. 

While  Spain  was  in  the  occupation  of  France,  and  at  war  with 
Great  Britain,  the  Spanish  insurrection  broke  out,  and  the 
British  Government  issued  a  proclamation  that  all  hostilities 
against  Spain  should  immediately  cease.  Great  part  of  Spain, 
however,  was  still  occupied  by  French  troops,  and  amongst 
others,  the  port  of  St.  Andero.  A  ship  called  The  "Santa 
Anna"  was  captured  on  a  voyage,  as  it  was  alleged,  to  St. 
Andero,  and  Lord  Stowell  (1  Edw.  182)  observed: — "Under 
these  public  declarations  of  the  State,  establishing  this  general 
peace  and  amity,  I  do  not  know  that  it  would  be  in  the  power 


THE  GERASIMO.  191 

of  the  Court  to  condemn  Spanish  property,  though  belonging 
to  persons  resident  in  those  parts  of  Spain  which  are  at  the 
present  moment  under  French  control,  except  under  such  cir- 
cumstances as  would  justify  the  confiscation  of  neutral  prop- 
erty." 

The  same  principle  has  been  acted  upon  in  the  Courts  of  Com- 
mon Law. 

In  the  case  of  Donaldson  v.  Thompson  (1  Campb.  429),  the 
Russian  troops  were  in  possession  of  Corfu  and  the  other  Ionian 
Islands,  though  the  form  of  a  Republic  was  preserved,  and  it 
was  contended  that  the  Islands  must  be  considered  as  substan- 
tially part  of  the  territory  of  the  Russian  Empire,  if  the  Rus- 
sian power  was  there  dominant,  and  the  supreme  authority  was 
in  the  Russian  Commander;  or,  if  not,  that  the  Republic  must 
be  considered  as  a  co-belligerent  with  Russia  against  the  Porte, 
since  the  Emperor  of  Russia  derived  the  same  advantages,  in  a 
military  point  of  view,  from  this  occupation  of  the  Islands  as 
if  he  had  seized  it  hostilely,  or  the  Ionian  Republic  had  been 
his  ally  in  the  war  he  was  carrying  on.  Both  these  propositions, 
however,  were  repudiated  by  Lord  Ellenborough ;  and  after- 
wards, on  motion  to  set  aside  the  verdict  by  the  Court  of 
King's  Bench,  Lord  Ellenborough  observed: — "Will  any  one 
contend  that  a  Government  which  is  obliged  to  yield  in  any 
quarter  to  a  superior  force  becomes  a  co-belligerent  with  the 
power  to  which  it  yields?  It  may  as  well  be  contended  that 
neutral  and  belligerent  mean  the  same  thing."  The  same  doc- 
trine was  afterwards  laid  down  by  the  Court  of  King's  Bench, 
in  Hagedorn  v.  Bell,  (1  Mau.  and  Sel.  450),  in  the  case  of  a 
trade  carried  on  with  Hamburg,  which  had  been  for  several 
years,  and  at  the  time  was  in  the  military  occupation  of  the 
French. 

The  distinction  between  hostile  occupation  and  possession 
clothed  with  a  legal  right  by  cession  or  conquest,  or  confirmed 
by  length  of  time,  is  recognized  by  Lord  Stowell  in  the  case  of 
The  "Bolletta,"  (1  Edw.  171).  A  question  there  arose  whether 
certain  property  belonging  to  merchants  at  Zante,  which  had 
been  captured  by  a  British  privateer,  was  to  be  considered  as 
French  or  as  Russian  property,  that  question  depending  upon 
the  national  character  of  Zante  at  the  time  of  the  capture. 
Lord  Stowell  observes,  p.  173: — "On  the  part  of  the  Crown  it 
has  been  contended,  that  the  possession  taken  by  the  French  was 
of  a  forcible  and  temporary  nature,  and  that  such  a  possession 


192  JURISDICTION. 

does  not  change  the  national  character  of  the  country  until  it 
is  confirmed  by  a  formal  cession,  or  by  long  lapse  of  time.  That 
may  be  true,  when  possession  has  been  taken  by  force  of  arms 
and  by  violence:  but  this  is  not  an  occupation  of  that  nature. 
France  and  Russia  had  settled  their  differences  by  the  treaty 
of  Tilsit,  and  the  two  countries  being  at  peace  with  each  other, 
it  must  be  understood  to  have  been  a  voluntary  surrender  of  the 
territory  on  the  part  of  Russia."  On  this  ground  he  held  the 
territory  to  have  become  French  territory,  remarking  in  a  subse- 
quent passage  of  his  judgment  that  this  was  a  cession  by  treaty, 
and  not  an  hostile  occupation  by  force  of  arms,  liable  to  be  lost 
again  the  next  day. 

These  authorities,  with  the  other  cases  cited  at  the  Bar,  seem 
to  establish  the  proposition,  that  the  mere  possession  of  a  terri- 
tory by  an  enemy's  force  does  not  of  itself  necessarily  convert 
the  territory  so  occupied  into  hostile  territory,  or  its  inhabitants 
into  enemies.  .  .  . 

Their  Lordships  have  no  hesitation  in  advising  restitution  of 
the  cargo,  with  costs  and  damages  against  the  captors. 


DOOLEY  v.  UNITED  STATES. 

SUPREME  COUET  OF  THE  UNITED  STATES.     1901. 
182  U.  S.   222. 

Error  to  the  Circuit  Court  of  the  United  States  for  the  South- 
ern District  of  New  York. 

This  was  an  action  begun  in  the  Circuit  Court,  as  a  Court  of 
Claims,  by  the  firm  of  Dooley,  Smith  &  Co.,  engaged  in  trade 
and  commerce  between  Porto  Rico  and  New  York,  to  recover 
back  certain  duties  to  the  amount  of  $5,374.68,  exacted  and  paid 
under  protest  at  the  port  of  San  Juan,  Porto  Rico,  upon  several 
consignments  of  merchandise  imported  into  Porto  Rico  from 
New  York  between  July  26,  1898,  and  May  1,  1900,  viz. : 

1.  From  July  26,  1898,  until  August  19,  1898,  under  the 
terms  of  the  proclamation  of  General  Miles,  directing  the  exac- 
tion of  the  former  Spanish  and  Porto  Rican  duties. 

2.  From  August  19,  1898,  until  February  1,  1899,  under  the 


DOOLEY  v.  UNITED  STATES.  193 

customs  tariff  for  Porto  Rico,  proclaimed  by  order  of  the 
President. 

3.  From  February  1,  1899,  to  May  1,  1900,  under  the 
amended  tariff  customs  promulgated  January  20,  1899,  by  order 
of  the  President. 

It  thus  appears  that  the  duties  were  collected  partly  before 
and  partly  after  the  ratification  of  the  treaty  [by  which  Porto 
Rico  was  ceded  to  the  United  States] ,  but  in  every  instance  prior 
to  the  taking  effect  of  the  Foraker  act.  The  revenues  thus 
collected  were  used  by  the  military  authorities  for  the  benefit  of 
the  provisional  government. 

A  demurrer  was  interposed  upon  the  ground  of  the  want 
of  jurisdiction  and  the  insufficiency  of  the  complaint.  The 
Circuit  Court  sustained  the  demurrer  upon  the  second  ground, 
and  dismissed  the  petition.  Hence  this  writ  of  error.  .  .  . 

MR.  JUSTICE  BROWN  .  .  .  delivered  the  opinion  of  the 
court.  4  .  . 

In  their  legal  aspect,  the  duties  exacted  in  this  case  were  of 
three  classes:  (1)  the  duties  prescribed  by  General  Miles  under 
order  of  July  26,  1898,  which  merely  extended  the  existing  regu- 
lations; (2)  the  tariffs  of  August  19,  1898,  and  February  1, 
1899,  prescribed  by  the  President  as  Commander-in-Chief,  which 
continued  in  effect  until  April  11,  1899,  the  date  of  the  ratifi- 
cation of  the  treaty  and  the  cession  of  the  island  to  the  United 
States;  (3)  from  the  ratification  of  the  treaty  to  May  1,  1900, 
when  the  Foraker  act  took  effect. 

There  can  be  no  doubt  with  respect  to  the  first  two  of  these 
classes,  namely,  the  exaction  of  duties  under  the  war  power, 
prior  to  the  ratification  of  the  treaty  of  peace.  While  it  is  true 
the  treaty  of  peace  was  signed  December  10,  1898,  it  did  not  take 
effect  upon  individual  rights,  until  there  was  an  exchange  of 
ratifications.  Haver  v.  Yaker,  9  Wall.  32.  Upon  the  occupa- 
tion of  the  country  by  the  military  forces  of  the  United  States, 
the  authority  of  the  Spanish  Government  was  superseded,  but 
the  necessity  for  a  revenue  did  not  cease.  The  government 
must  be  carried  on,  and  there  was  no  one  left  to  administer  its 
functions  but  the  military  forces  of  the  United  States.  Money 
is  requisite  for  that  purpose,  and  money  could  only  be  raised 
by  order  of  the  military  commander.  The  most  natural  method 
was  by  the  continuation  of  existing  duties.  In  adopting  this 
'5  method,  General  Miles  was  fully  justified  by  the  laws  of  war. 


194  JURISDICTION. 

The  doctrine  upon  this  subject  is  thus  summed  up  by  Halleck 
in  his  work  on  International  Law,  (vol.  2,  page  444)  :  "The 
right  of  one  belligerent  to  occupy  and  govern  the  territory  of 
the  enemy  while  in  its  military  possession,  is  one  of  the  incidents 
of  war,  and  flows  directly  from  the  right  to  conquer.  We,  there- 
fore, do  not  look  to  the  Constitution  or  political  institutions  of 
the  conqueror,  for  authority  to  establish  a  government  for 
the  territory  of  the  enemy  in  his  possession,  during  its  military 
occupation,  nor  for  the  rules  by  which  the  powers'  of  such  gov- 
ernment are  regulated  and  limited.  Such  authority  and  such 
rules  are  derived  directly  from  the  laws  of  war,  as  established 
by  the  usage  of  the  world,  and  confirmed  by  the  writings  of 
publicists  and  decisions  of  courts — in  fine,  from  the  law  of  na- 
tions. .  .  .  The  municipal  laws  of  a  conquered  territory, 
or  the  laws  which  regulate  private  rights,  continue  in  force 
during  military  occupation,  except  so  far  as  they  are  suspended 
or  changed  by  the  acts  of  the  conqueror.  .  .  .  He,  never- 
theless, has  all  the  powers  of  a  de  facto  government,  and  can 
at  his  pleasure  either  change  the  existing  laws  or  make  new 
ones." 

In  New  Orleans  v.  Steamship  Co.,  20  Wall.  387,  393,  it  was 
said,  with  respect  to  the  powers  of  the  military  government  over 
the  city  of  New  Orleans  after  its  conquest,  that  it  had  ' '  the  same 
power  and  rights  in  territory  held  by  conquest  as  if  the  territory 
had  belonged  to  a  foreign  country  and  had  been  subjugated  in 
a  foreign  war.  In  such  cases  the  conquering  power  has  the 
right  to  displace  the  pre-existing  authority,  and  to  assume  to 
such  extent  as  it  may  deem  proper  the  exercise  by  itself  of  all 
the  powers  and  functions  of  government.  It  may  appoint  all 
the  necessary  officers  and  clothe  .them  with  designated  powers, 
larger  or  smaller,  according  to  its  pleasure.  It  may  prescribe 
the  revenues  to  be  paid,  and  apply  them  to  its  own  use  or  other- 
wise. It  may  do  anything  necessary  to  strengthen  itself  and 
weaken  the  enemy.  There  is  no  limit  to  the  powers  that  may  be 
exerted  in  such  cases,  save  those  which  are  found  in  the  laws 
and  usages  of  war.  These  principles  have  the  sanction  of  all 
publicists  who  have  considered  the  subject."  See  also  Thirty 
Hogsheads  of  Sugar  v.  Boyle,  9  Cr.  191 ;  Fleming  v.  Page,  9 
How.  603;  American  Ins.  Co.  v.  Canter,  1  Pet.  511. 

But  it  is  useless  to  multiply  citations  upon  this  point,  since 
the  authority  to  exact  similar  duties  was  fully  considered  and 
affirmed  by  this  court  in  Cross  v.  Harrison,  16  How.  164.  This 


DOOLEY  v.  UNITED  STATES.  195 

case  involved  the  validity  of  duties  exacted  by  the  military  com- 
mander of  California  upon  imports  from  foreign  countries,  from 
the  date  of  the  treaty  of  peace,  February  3,  1848,  to  November 
14,  1849,  when  the  collector  of  customs  appointed  by  the  Presi- 
dent entered  upon  the  duties  of  his  office.    Prior  to  the  treaty 
of  peace,  and  from  August,  1847,  duties  had  been  exacted  by 
the  military  authorities,  the  validity  of  which  does  not  seem 
to  have  been  questioned.    Page  189:    "That  war  tariff,  however, 
was  abandoned  as  soon  as  the  military  governor  had  received 
from  Washington  information  of  the  exchange  and  ratification 
of  the  treaty  with  Mexico,  and  duties  were  afterwards  levied  in 
conformity  with  such  as  Congress  had  imposed  upon  foreign 
merchandise  imported  into  other  ports  of  the  United  States, 
Upper  California  having  been  ceded  by  the  treaty  to  the  United 
States."     The  duties  were  held  to  have  been  legally  exacted. 
Speaking  of  the  duties  exacted  before  the  treaty  of  peace,  Mr. 
Justice  Wayne  observed   (p.  190)  :     "No  one  can  doubt  that 
these  orders  of  the  President,  and  the  action  of  our  Army  and 
Navy  commanders  in  California,  in  conformity  with  them,  was 
according  to  the  law  of  arms  and  the  right  of  conquest,  or  that 
they  were  operative  until  the  ratification  and  exchange  of  a 
treaty  of  peace.    Such  would  be  the  case  upon  general  principles 
in  respect  to  war  and  peace  between  nations."     It  was  further 
held  that  the  right  to  collect  these  duties  continued  from  the 
date  of  the  treaty  up  to  the  time  when  official  notice  of  its 
ratification  and  exchange  were  received  in  California.     Owing 
to  the  fact  that  no  telegraphic  communication  existed  at  that 
time,  the  news  of  the  ratification  of  this  treaty  did  not  reach 
California  until  August  7,  1848,  during  which  time  the  war 
tariff  was  continued.     The  question  does  not  arise  in  this  case, 
as  the  ratifications  of  the  treaty  appear  to  have  been  known  as 
soon  as  they  were  exchanged. 

The  court  further  held  in  Cross  v.  Harrison  that  the  right 
of  the  military  commander  to  exact  the  duties  prescribed  by 
the  tariff  laws  of  the  United  States  continued  until  a  collector 
of  customs  had  been  appointed.  Said  the  court:  "The  govern- 
ment, of  which  Colonel  Mason  was  the  executive,  had  its  origin 
in  the  lawful  exercise  of  a  belligerent  right  over  a  conquered 
territory.  It  had  been  instituted  by  the  command  of  the  Presi- 
dent of  the  United  States.  It  was  the  government  when  the 
territory  was  conceded  as  a  conquest,  and  it  did  not  cease,  as  a 
matter  of  course,  or  as  a  necessary  consequence,  of  the  restora- 


196  JURISDICTION. 

tion  of  peace.  The  President  might  have  dissolved  it  by  with- 
drawing the  army  and  navy  officers  who  administered  it,  but  he 
did  not  do  so.  Congress  could  have  put  an  end  to  it,  but  that 
was  not  done.  The  right  inference  from  the  inaction  of  both 
is,  that  it  was  meant  to  be  continued  until  it  had  been  legisla- 
tively changed.  .  .  .  We  think  it  was  continued  over  a  ceded 
conquest,  without  any  violation  of  the  Constitution  or  laws  of 
the  United  States,  and  that,  until  Congress  legislated  for  it,  the 
duties  upon  foreign  goods,  imported  into  San  Francisco,  were 
legally  demanded  and  lawfully  received  by  Mr.  Harrison,  the 
collector  of  the  port,  who  received  his  appointment,  according 
to  instructions  from  Washington,  from  Governor  Mason." 

Upon  this  point  that  case  differs  from  the  one  under  con- 
sideration only  in  the  particular  that  the  duties  were  levied  in 
Cross  v.  Harrison  upon  goods  imported  from  foreign  countries 
into  California,  while  in  the  present  case  they  were  imported 
from  New  York,  a  port  of  the  conquering  country.  This,  how- 
ever, is  quite  immaterial.  The  United  States  and  Porto  Rico 
were  still  foreign  countries  with  respect  to  each  other,  and  the 
same  right  which  authorized  us  to  exact  duties  upon  merchan- 
dise imported  from  Porto  Rico  to  the  United  States  authorized 
the  military  commander  in  Porto  Rico  to  exact  duties  upon 
goods  imported  into  that  island  from  the  United  States.  The 
fact  that,  notwithstanding  the  military  occupation  of  the  United 
States,  Porto  Rico  remained  a  foreign  country  within  the 
revenue  laws  is  established  by  the  case  of  Fleming  v.  Page, 
9  How.  603,  in  which  we  held  that  the  capture  and  occupation 
of  a  Mexican  port  during  our  war  with  that  country  did  not 
make  it  a  part  of  the  United  States,  and  that  it  still  remained 
a  foreign  country  within  the  meaning  of  the  revenue  laws.  The 
right  to  exact  duties  upon  goods  imported  into  Porto  Rico  from 
New  York  arises  from  the  fact  that  New  York  was  still  a  for- 
eign country  with  respect  to  Porto  Rico,  and  from  the  correla- 
tive right  to  exact  at  New  York  duties  upon  merchandise  im- 
ported from  that  island.  .  .  . 

Without  questioning  at  all  the  original  validity  of  the  order 
imposing  duties  upon  goods  imported  into  Porto  Rico  from 
foreign  countries,  we  think  the  proper  construction  of  that 
order  is,  that  it  ceased  to  apply  to  goods  imported  from  the 
United  States  from  the  moment  the  United  States  ceased  to  be 
a  foreign  country  with  respect  to  Porto  Rico,  and  that  until 


MACLEOD  v.  UNITED  STATES.  197 

Congress  otherwise  constitutionally  directed,  such  merchandise 
was  entitled  to  free  entry. 

An  unlimited  power  on  the  part  of  the  Commander-in-Chief 
to  exact  duties  upon  imports  from  the  States  might  have  placed 
Porto  Rico  in  a  most  embarrassing  situation.  The  ratification 
of  the  treaty  and  the  cession  of  the  island  to  us  severed  her 
connection  with  Spain,  of  which  the  island  was  no  longer  a 
colony,  and  with  respect  to  which  she  had  become  a  foreign 
country.  The  wall  of  the  Spanish  tariff  was  raised  against  her 
exports,  the  wall  of  the  military  tariff  against  her  imports,  from 
the  mother  country.  She  received  no  compensation  from  her 
new  relations  with  the  United  States.  If  her  exports,  upon 
arriving  there,  were  still  subject  to  the  same  duties  as  merchan- 
dise arriving  from  other  foreign  countries,  while  her  imports 
from  the  United  States  were  subjected  to  duties  prescribed  by 
the  Commander-in-Chief,  she  would  be  placed  in  a  position  of 
practical  isolation,  which  could  not  fail  to  be  disastrous  to  the 
business  and  finances  of  an  island.  It  had  no  manufacturers  or 
markets  of  its  own,  and  was  dependent  upon  the  markets  of 
other  countries  for  the  sale  of  her  productions  of  coffee,  sugar 
and  tobacco.  In  our  opinion  the  authority  of  the  President 
as  Commander-in-Chief  to  exact  duties  upon  imports  from  the 
United  States  ceased  with  the  ratification  of  the  treaty  of  peace, 
and  her  right  to  the  free  entry  of  goods  from  the  ports  of  the 
United  States  continued  until  Congress  should  constitutionally 
legislate  upon  the  subject. 

The  judgment  of  the  Circuit  Court  is  therefore  reversed.  .  .  . 

MR.  JUSTICE  WHITE,  (with  whom  concurred  MB.  JUSTICE 
GRAY,  MR.  JUSTICE  SHIRAS  and  MR.  JUSTICE  MCKJENNA,)  dis- 
senting. .  .  . 


MACLEOD  v.  UNITED  STATES. 

SUPREME  COUET  OF  THE  UNITED  STATES.    1913. 
229  U.  S.  416. 

Appeal  from  the  Court  of  Claims. 

[War  having  been  declared  between  the  United  States  and 
Spain  on  April  25,  1898,  the  forces  of  the  United  States  on 


198  JURISDICTION. 

May  1  following  captured  Manila  Bay  and  harbor.  On  July 
12,  the  President  of  the  United  States  issued  an  order  setting 
forth  a  "  tariff  of  duties  and  taxes  to  be  levied,  and  collected 
as  a  military  contribution"  in  all  ports  and  places  in  the 
Philippine  Islands  which  should  be  occupied  by  the  American 
forces.  On  December  25,  1898,  the  Spanish  forces  evacuted 
the  Island  of  Cebu,  having  first  appointed  a  provisional  gov- 
ernor. Shortly  thereafter  the  native  inhabitants,  formerly  in 
insurrection  against  Spain,  took  possession  of  the  island,  estab- 
lished a  republic,  and  administered  the  island  until  possession 
was  surrendered  to  the  United  States  on  February  22,  1899, 
prior  to  which  time  no  authorities  of  the  United  States  had 
been  in  the  island.  While  the  island  was  under  control  of  its 
native  inhabitants,  the  appellant,  charterer  of  the  American 
steamship  Venus,  which  arrived  at  Cebu,  with  a  cargo  of  rice, 
from  Saigon,  China,  on  January  29,  1899,  was  required  to  pay 
duties  to  the  native  government  before  he  was  permitted  to  land 
his  cargo.  The  steamer  then  proceeded  to  Manila,  where  the 
American  authorities,  acting  under  the  President's  proclama- 
tion of  July  12,  1898,  exacted  a  second  payment  of  duties  on 
the  same  cargo.  The  appellant  paid  the  duties  under  protest 
and  then  brought  suit  in  the  Court  of  Claims  for  their  recovery. 
That  court  having  dismissed  his  petition,  45  Ct.  Cl.  339,  he 
appealed  to  this  court.] 

MR.  JUSTICE  DAY    .    .    .    delivered  the  opinion  of  the  court. 

When  the  Spanish  fleet  was  destroyed  at  Manila.  May  1,  1898, 
it  became  apparent .  that  the  Government  of  the  United  States 
might  be  required  to  take  the  necessary  steps  to  make  provision 
for  the  government  and  control  of  such  part  of  the  Philippines 
as  might  come  into  the  military  occupation  of  the  forces  of 
the  United  States.  The  right  to  thus  occupy  an  enemy's  coun- 
try and  temporarily  provide  for  its  government  has  been  recog- 
nized by  previous  action  of  the  executive  authority  and  sanc- 
tioned by  frequent  decisions  of  this  court.  The  local  government 
being  destroyed,  the  conqueror  may  set  up  its  own  temporary 
government,  and  to  that  end  may  Collect  taxes  and  duties  to 
support  the  military  authority  and  carry  on  operations  inci- 
dent to  the  occupation.  Such  was  the  course  of  the  Government 
with  respect  to  the  territory  acquired  by  conquest  and  after- 
wards ceded  by  the  Mexican  Government  to  the  United  States. 
Cross  v.  Harrison,  16  How.  164.  See  also  in  this  connection 


MACLEOD  v.  UNITED  STATES.  199 

Fleming  v.  Page,  9  How.  603;  New  Orleans  v.  Steamship  Co., 
20  Wall.  387;  Dooley  v.  United  States,  182  U.  S.  222;  7  Moore's 
International  Law  Digest,  §§  1143  et  seq.,  in  which  the  history 
of  this  government's  action  following  the  Mexican  War  and 
during  and  after  the  Spanish- American  War  is  fully  set  forth: 
and  also  Taylor  on  International  Public  Law,  chapter  ix,  Mili- 
tary Occupation  and  Administration,  §§  568  et  seq.,  and  2  Op- 
penheim  on  International  Law,  §§  166,  et  seq. 

There  has  been  considerable  discussion  in  the  cases  and  in 
works  of  authoritative  writers  upon  the  subject  of  what  con- 
stitutes an  occupation  which  will  give  the  right  to  exercise  gov- 
ernment authority.  Such  occupation  is  not  merely  invasion, 
but  is  invasion  plus  possession  of  the  enemy's  country  for  the 
purpose  of  holding  it  temporarily  at  least.  2  Oppenheim,  §  167. 
What  should  constitute  military  occupation  was  one  of  the 
matters  before  The  Hague  Convention  in  1899  respecting  laws 
and  customs  of  war  on  land,  and  the  following  articles  were 
adopted  by  the  nations  giving  adherence  to  that  Convention, 
among  which  is  the  United  States  (32  Stat.  II,  1821)  : 

"Article  XLII.  Territory  is  considered  occupied  when  it  is 
actually  placed  under  the  authority  of  the  hostile  army. 

"The  occupation  applies  only  to  the  territory  where  such 
authority  is  established,  and  in  a  position  to  assert  itself. 

"Article  XLIII.  The  authority  of  the  legitimate  power  hav- 
ing actually  passed  into  the  hands  of  the  occupant,  the  latter 
shall  take  all  steps  in  his  power  to  reestablish  and  insure,  as  far 
as  possible,  public  order  and  safety,  while  respecting,  unless 
absolutely  prevented,  the  laws  in  force  in  the  country." 

A  reference  to  the  Messages  and  Papers  of  the  Presidents,  to 
which  we  may  refer  as  matters  of  public  history,  shoAvs  that  the 
President  was  sensible  of  and  disposed  to  conform  the  activities 
of  our  Government  to  the  principles  of  international  law  and 
practice.  See  10  Messages  and  Papers  of  the  Presidents,  208, 
executive  order  of  the  President  to  the  Secretary  of  War,  in 
which  the  President  said  (p.  210)  : 

"While  it  is  held  to  be  the  right  of  a  conqueror  to  levy  con- 
tributions upon  the  enemy  in  their  seaports,  towns,  or  provinces 
which  may  be  in  his  military  possession  by  conquest,  and  to 
apply  the  proceeds  to  defray  the  expenses  of  the  war,  this  right 
is  to  be  exercised  within  such  limitations  that  it  may  not  savor 
of  confiscation.  As  the  result  of  military  occupation  the  taxes 
and  duties  payable  by  the  inhabitants  to  the  former  government 


200  JURISDICTION. 

become  payable  to  the  military  occupant,  unless  he  sees  fit  to 
substitute  for  them  other  rates  or  modes  of  contributions  to  the 
expenses  of  the  government.  The  moneys  so  collected  are  to  be 
used  for  the  purpose  of  paying  the  expenses  of  government 
under  the  military  occupation,  such  as  the  salaries  of  the  judges 
and  the  police,  and  for  the  payment  of  the  expenses  of  the 
army. ' ' 

To  the  same  effect,  executive  order  of  the  President  to  the 
Secretary  of  the  Treasury,  in  which  the  President  said  (p.  211)  : 

"I  have  determined  to  order  that  all  ports  or  places  in  the 
Philippines  which  may  be  in  the  actual  possession  of  our  land 
and  naval  forces  by  conquest  shall  be  opened,  while  our  mili- 
tary occupation  may  continue,  to  the  commerce  of  all  neutral 
nations,  as  well  as  our  own,  in  articles  not  contraband  of  war, 
upon  payment  of  the  rates  of  duty  which  may  be  in  force  at  the 
time  when  the  goods  are  imported." 

And  the  like  executive  order  of  the  President  to  the  Secretary 
of  the  Navy  (p.  212). 

In  pursuance  of  this  policy,  the  order  of  July  12,  1898,  was 
framed.  By  its  plain  terms  the  President  orders  and  directs 
the  collection  of  tariff  duties  at  ports  in  the  occupation  and 
possession  of  the  forces  of  the  United  States.  More  than  this 
would  not  have  been  consistent  with  the  principles  of  inter- 
national law,  nor  with  the  practice  of  this  Government  in  like 
cases.  While  the  subsequent  order  of  December  21,  1898,  made 
after  the  signing  of  the  treaty  of  peace,  is  referred  to  in  the 
brief  of  counsel  for  the  Government,  it  was  not  alluded  to  in  the 
findings  of  fact  of  the  Court  of  Claims ;  but  we  find  in  that  order 
nothing  indicating  a  change  of  policy  in  respect  to  the  collec- 
tion of  duties.  "While  the  signing  of  the  treaty  of  peace  between 
the  United  States  and  Spain  on  December  10,  1898,  was  stated, 
the  responsible  obligations  imposed  upon  the  United  States  by 
reason  thereof  were  recited  and  acknowledged  and  the  necessity 
of  extending  the  government  with  all  possible  dispatch  to  the 
whole  of  the  ceded  territory  was  emphasized,  no  disposition 
was  shown  to  enlarge  the  number  of  ports  and  places  in  the 
Philippine  Islands  at  which  duties  should  be  collected  so  as  to 
include  those  not  occupied  by  the  United  States,  and  the  Pres- 
ident said  (p.  220)  : 

"All  ports  and  places  in  the  Philippine  Islands  in  the  actual 
possession  of  the  land  and  naval  forces  of  the  United  States 
will  be  opened  to  the  commerce  of  all  friendly  nations.  All 


MACLEOD  v.  UNITED  STATES.  201 

goods  and  wares  not  prohibited  for  military  reasons,  by  due 
announcement  of  the  military  authority,  will  be  admitted  upon 
payment  of  such  duties  and  other  charges  as  shall  be  in  force 
at  the  time  of  their  importation." 

The  occupation  by  the  United  States  of  the  city,  bay  and  har- 
bor of  Manila  pending  the  conclusion  of  a  treaty  which  should 
determine  the  control,  disposition  and  government  of  the  Philip- 
pines was  provided  for  by  the  protocol  of  August  12,  1898, 
and  the  necessity  of  further  occupation  until  the  exchange  of 
ratifications  by  the  Government  of  Spain  and  the  United  States, 
was  recognized  by  the  President  in  the  order  of  December  21, 
1898.  "We  have  been  unable  to  find  anything  in  the  executive 
or  congressional  action  prior  to  the  importation  of  the  cargo 
now  in  question  having  the  effect  to  extend  the  executive  order 
as  to  the  collection  of  duties  during  the  military  occupation  to 
ports  and  places  not  within  the  occupation  and  control  of  the 
United  States. 

The  statement  of  the  facts  shows  that  the  insurgent  govern- 
ment was  in  actual  possession  of  the  custom-house  at  Cebu,  with 
power  to  enforce  the  collection  of  duties  there,  as  it  did.  Such 
government  was  of  the  class  of  de  facto  governments  described 
in  1  Moore 's  International  Law  Digest,  §  20,  as  follows : 

"But  there  is  another  description  of  government,  called  also 
by  publicists  a  government  de  facto,  but  which  might,  perhaps, 
be  more  aptly  denominated  a  government  of  paramount  force. 
Its  distinguishing  characteristics  are  (1)  that  its  existence  is 
maintained  by  active  military  power  within  the  territories,  and 
against  the  rightful  authority  of.  an  established  and  lawful  gov- 
ernment; and  (2)  that  while  it  exists  it  must  necessarily  be 
obeyed  in  civil  matters  by  private  citizens  who,  by  acts  of 
obedience  rendered  in  submission  to  such  force,  do  not  become 
responsible,  as  wrongdoers,  for  those  acts,  though  not  warranted 
by  the  laws  of  the  rightful  government.  Actual  governments 
of  this  sort  are  established  over  districts  differing  greatly  in 
extent  and  conditions.  They  are  usually  administered  directly 
by  military  authority,  but  they  may  be  administered  also,  by 
civil  authority,  supported  more  or  less  directly  by  military 
force."  Thorington  v.  Smith,  8  Wall.  1,  9. 

The  attitude  of  this  Government  toward  such  de  facto  gov- 
ernments was  evidenced  in  the  Bluefields  case,  a  full  account  of 
which  is  given  in  1  Moore's  International  Law  Digest,  pp.  49 
et  seq.  In  that  case  General  Reyes  had  headed  an  insurrection- 


202  JURISDICTION. 

ary  movement  at  Bluefields  and  acquired  actual  control  of  the 
Mosquito  Territory  in  Nicaragua.  His  control  continued  for 
a  short  time  only,  February  3  to  February  25,  1899,  and  after 
the  reestablisjiment  of  the  Nicaraguan  Government  at  Bluefields 
it  demanded  of  American  merchants  the  payment  to  it  of  certain 
amounts  of  duty  which  they  had  been  compelled  to  pay  to  the 
insurgent  authorities  during  the  period  of  their  de  facto  con- 
trol. The  American  Government  remonstrated,  and  the  duties 
demanded  by  the  Nicaraguan  Government  were  by  agreement 
deposited  in  the  British  consulate  pending  a  settlement  of  the 
controversy.  The  Department  of  State  of  the  United  States, 
upon  receiving  sworn  statements  of  the  American  merchants  to 
the  effect  that  they  were  not  accomplices  of  Reyes,  that  the 
money  actually  exacted  was  the  amount  due  on  bonds  which 
then  matured  for  duties  levied  in  December,  1898,  payments 
being  made  to  the  agent  of  the  titular  government  who  was 
continued  in  office  by  General  Reyes,  that  payment  was  de- 
manded under  threat  of  suspension  of  importations,  and  that 
from  February  3  to  February  25  General  Reyes  was  in  full 
control  of  the  civil  and  military  agencies  in  the  district,  ex- 
pressed the  opinion  that  to  exact  the  second  payment  would  be 
an  act  of  international  injustice:  and  the  money  was  finally 
returned  to  the  American  merchants  with  the  assent  of  the 
Government  of  Nicaragua. 

A  similar  case  appears  in  1  Moore's  International  Digest, 
p.  49,  in  which  our  Government  was  requested  by  Great  Britain 
to  use  its  good  offices  to  prevent  the  exaction  by  the  Mexican 
Government  of  certain  duties  at  Mazatlan,  which  had  been  pre- 
viously paid  to  insurgents.  The  then  Secretary  of  State,  Mr. 
Fish,  instructed  our  Minister  to  Mexico  as  follows: 

"It  is  difficult  to  understand  upon  what  ground  of  equity  or 
public  law  such  duties  can  be  claimed.  The  obligation  of  obedi- 
ence to  a  government  at  a  particular  place  in  a  country  may  be 
regarded  as  suspended,  at  least,  when  its  authority  is  usurped, 
and  is  due  to  the  usurpers  if  they  choose  to  exercise  it.  To  re- 
quire a  repayment  of  duties  in  such  cases  is  tantamount  to  the 
exaction  of  a  penalty  on  the  misfortune,  if  it  may  be  so  called, 
of  remaining  and  carrying  on  business  in  a  port  where  the  au- 
thority of  the  government  had  been  annulled.  The  pretension 
in  analogous  to  that  upon  which  vessels  have  been  captured 
and  condemned  upon  a  charge  of  violating  a  blockade  of  a  port 


NOTE.  203 

set  on  foot  by  a  proclamation  only,  without  force  to  carry  it 
into  effect." 

See  also  Colombian  Controversy,  6  Moore's  International 
Law  Digest,  pp.  995  et  seq.  .  .  . 

"We  do  not  think  that  it  was  the  purpose  of  the  executive 
order  under  which  the  government  at  Manila  was  instituted  and 
maintained  at  the  time  of  this  importation  to  direct  the  collec- 
tion of  the  duties  at  ports  not  in  the  occupation  of  the  United 
States,  and  certainly  not  at  one  actually  in  the  possession  of  a 
de  facto  government,  as  is  shown  in  this  case.  .  .  . 

We  think  the  Court  of  Claims  was  in  error  in  holding  the 
duties  collectible  at  Manila  under  the  circumstances  related. 
.  •  .  .  Its  judgment  will  therefore  be  reversed  and  the  case 
remanded  to  the  Court  of  Claims  with  instructions  to  enter 
judgment  for  the  claimant.  Reversed. 

NOTE. — 'The  most  important  discussions  of  the  law  governing  military 
occupation  are  Fleming  v.  Page  (1850),  9  Howard,  603;  Cross  v.  Har- 
rison (1854),  16  Ib.  16.4;  Leitensdorfer  v.  Webb  (1858),  20  Ib.  176; 
New  Orleans  v.  Steamship  Co.  (1875),  20  Wallace,  387;  Coleman  v. 
Tennessee  (1879),  97  U.  S.  509;  Ferrand,  Des  Requisitions  en  Matiere 
de  Droit  International  Public;  Fillet,  Les  Lois  Actuelles  de  la  Guerre; 
Oppenheim,  "The  Legal  Relations  Between  an  Occupying  Power  and 
the  Inhabitants,"  Law  Quarterly  Review,  XXXIII,  363;  Spaight,  War 
Rights  on  Land;  Birkhimer,  Military  Government  and  Martial  Law; 
Cobbett,  Cases  and  Opinions,  II,  108;  Magoon,  Reports,  11-36,  225-228, 
261-455;  Bonfils  (Fauchille),  sec.  1155;  Hyde,  II,  361,  and  Moore, 
Digest,  I,  45,  VII,  257.  The  methods  employed  by  the  Germans  dur- 
ing their  occupation  of  Belgium  and  Northern  France  are  described 
in  Garner,  vol.  II. 

In  determining  upon  the  measures  and  methods  of  government  to  be 
adopted  in  the  occupied  territory,  the  occupant  is  limited  only  by  the 
restraints  of  his  own  municipal  law  and  by  the  laws  and  usages  of  war, 
Little  v.  Barreme  (1804),  2  Cranch,  168;  Mitchell  v.  Harmony  (1852), 
13  Howard,  115;  United  States  v.  Diekelman  (1876),  92  U.  S.  520;  Dow 
v.  Johnson  (1880),  100  U.  S.  158;  Gates  v.  Goodloe  (1880),  101  U.  S. 
612.  He  may  enforce  the  existing  local  law  or  substitute  a  new  system 
of  his  own  making,  United  States  v.  Reiter  '(1865),  27  Fed.  Cases, 
No.  16146.  The  system  of  military  government  does  not  necessarily 
cease  with  the  termination  of  war,  Cross  v.  Harrison  (1854),  16  How- 
ard, 164.  Contra,  Ex  parte  Ortiz  (1900),  100  Fed.  955.  Allegiance  to 
the  conqueror  during  a  temporary  military  occupation  merely  sus- 
pends the  former  allegiance.  It  does  not  make  the  inhabitants  aliens 
de  facto,  Shanks  v.  Dupont  (1830),  3  Peters,  242;  United  States  v. 
Huckabee  (1873),  16  Wallace,  414. 

The  terms  martial  law  and  military  law  are  frequently  used  syn- 
onymously. This  is  erroneous.  Military  law  applies  only  to  persons 
in  the  military  and  naval  forces  and  applies  to  them  in  both  peace 
and  war.  Martial  law  as  an  instrument  of  domestic  government  pre- 


204  JURISDICTION. 

supposes  a  state  of  public  danger  or  grave  disorder  necessitating  the 
substitution  of  summary  military  methods  for  the  more  deliberate 
methods  of  the  civil  law.  In  contemplation  of  international  law, 
however,  martial  law  is  that  body  of  law  which  is  imposed  upon  an 
occupied  district  by  the  will  of  the  military  occupant.  It  may  be, 
and  in  great  part  it  usually  is,  the  law  which  prevailed  in  the  dis- 
trict prior  to  its  subjugation,  but  during  the  occupation  it  derives  its 
authority  from  the  will  of  the  occupant.  See  Ex  parte  Milligan  (1866), 
4  Wallace,  2;  Marais  v.  Attorney  General  of  Natal  (1902),  L.  R. 
[1902]  A.  C.  109;  Johnson  v.  Jones  (1867),  44  111.  142,  153;  Grove  v. 
Mott  (1884),  46  N.  J.  Law,  328,  331;  Sir  Frederick  Pollock,  "What 
is  Martial  Law,"  Law  Quarterly  Review,  XVIII,  152. 


CHAPTER  VI. 
EXEMPTIONS  FROM  JURISDICTION. 

SECTION  1.    SOVEREIGNS. 
MIGHELL  v.  SULTAN  OF  JOHORE. 

COURT  OF  APPEAL  or  ENGLAND.    1893. 
Law  Reports  [1894]  1  Q.  B.  149. 

Motion  to  set  aside  an  order  for  substituted  service  of  a  writ 
of  summons  in  an  action  for  breach  of  promise  of  marriage,  and 
to  stay  all  proceedings  therein,  on  the  ground  that  the  Court 
had  no  jurisdiction  over  the  defendant,  who  was  described  in 
the  writ  as  "The  Sultan  of  the  State  and  Territory  of  Johore, 
otherwise  known  as  Albert  Baker."  .  .  . 

LORD  ESHER,  M.  R.  For  the  purposes  of  my  judgment  I  must 
assume  that  the  Sultan  of  Johore  came  to  this  country  and  took 
the  name  of  Albert  Baker,  and  that  the  plaintiff  believed  that 
his  name  was  Albert  Baker,  and  I  will  go  so  far  as  to  assume 
for  the  present  purpose  that  he  deceived  her  by  pretending  to 
be  Albert  Baker,  and  then  promised  to  marry  her,  and  that 
he  broke  his  promise.  Whether  these  matters  could  be  proved, 
if  the  case  went  further,  is  entirely  another  matter;  but  at  the 
present  stage  of  the  case  I  will  assume  them  to  be  true.  At 
length,  when  he  is  sued,  he  alleges  that  he  is  a  sovereign  prince, 
and  that  no  action  can  be  maintained  against  him  in  the  mu- 
nicipal Courts  of  this  country  for  anything  which  he  has 
done.  .  .  . 

The  first  point  taken  was  that  it  was  not  sufficiently  shewn 
that  the  defendant  was  an  independent  sovereign  power.  There 
was  a  letter  written  on  behalf  of  the  Secretary  of  State  for  the 
Colonies,  on  paper  bearing  the  stamp  of  the  Colonial  Office,  and 
which  clearly  came  from  the  Secretary  of  State  for  the  Colonies 
in  his  official  character.  He  is  in  colonial  matters  the  adviser 
of  the  Queen,  and  I  think  the  letter  has  the  same  effect  for  the 

205 


206  EXEMPTIONS  FEOM  JURISDICTION. 

present  purposes  as  a  communication  from  the  Queen.  It  was 
argued  that  the  judge  ought  not  to  have  been  satisfied  with  that 
letter,  but  to  have  informed  himself  from  historical  and  other 
sources  as  to  the  status  of  the  Sultan  of  Johore.  It  was  said  that 
Sir  Robert  Phillimore  did  so  in  the  case  of  The  Charkieh,  Law 
Rep.  4  A.  &  E.  59.  I  know  he  did;  but  I  am  of  opinion  that 
he  ought  not  to  have  done  so;  that,  when  once  there  is  the  au- 
thoritative certificate  of  the  Queen  through  her  minister  of  state 
as  to  the  status  of  another  sovereign,  that  in  the  Courts  of  this 
country  is  decisive.  Therefore  this  letter  is  conclusive  that  the 
defendant  is  an  independent  sovereign.  For  this  purpose  all 
sovereigns  are  equal.  The  independent  sovereign  of  the  smallest 
state  stands  on  the  same  footing  as  the  monarch  of  the  greatest. 
It  being  established  that  the  defendant  is  in  that  position,  can 
he  be  sued  in  the  Courts  of  this  country?  It  is  not  contended 
that  he  could,  unless  by  coming  into  this  country,  and  living 
there  under  a  false  name,  and — I  will  assume  for  the  present 
purpose — by  so  deceiving  the  plaintiff,  he  has  lost  his  privilege 
as  an  independent  sovereign  and  made  himself  subject  to  the 
jurisdiction.  In  the  case  of  The  Parlement  Beige,  5  P.  D.  197, 
the  whole  subject  was  carefully  considered.  As  I  have  pointed 
out,  great  judges  in  the  House  of  Lords  and  the  Queen's  Bench 
had  in  previous  cases  declined  to  decide  this  point,  but  I  think 
that  this  Court  was  there  called  upon  to  decide  the  point,  and 
did  decide  it.  I  said,  in  giving  the  judgment  of  the  Court  in 
that  case,  after  citing  passages  from  various  authorities,  and  a 
minute  examination  of  the  cases  on  the  subject  (see  p.  214  of 
the  report),  "The  principle  to  be  deduced  from  all  these  cases 
is  that,  as  a  consequence  of  the  absolute  independence  of  every 
sovereign  authority,  and  of  the  international  comity  which  in- 
duces every  sovereign  state  to  respect  the  independence  and 
dignity  of  every  other  sovereign  state,  each  and  every  one  de- 
clines to  exercise  by  means  of  its  Courts  any  of  its  territorial 
jurisdiction  over  the  person  of  any  sovereign  or  ambassador  of 
any  other  state,  or  over  the  public  property  of  any  state  which 
is  destined  to  public  use,  or  over  the  property  of  any  ambassa- 
dor, though  such  sovereign,  ambassador,  or  property  be  within 
its  territory,  and  therefore,  but  for  the  common  agreement,  sub- 
ject to  its  jurisdiction."  It  appears  to  me  that,  by  the  authority 
of  this  Court,  the  rule  was  thus  laid  down  absolutely  and  with- 
out any  qualification.  We  had  not  then  to  deal  with  the  ques- 
tion of  a  foreign  sovereign  submitting  to  the  jurisdiction;  every- 


SO.  AFR.  REPUBLIC  v.  COMP.  FRANCO-BELGE.   207 

body  knows  and  understands  that  a  foreign  sovereign  may  do" 
that.  But  the  question  is,  How?  What  is  the  time  at  which 
he  can  be  said  to  elect  whether  he  will  submit  to  the  jurisdic- 
tion? Obviously,  as  it  appears  to  me,  it  is  when  the  Court  is 
about  or  is  being  asked  to  exercise  jurisdiction  over  him,  and 
not  any  previous  time.  Although  up  to  that  time  he  has  per- 
fectly concealed  the  fact  that  he  is  a  sovereign,  and  has  acted 
as  a  private  individual,  yet  it  is  only  when  the  time  comes  that 
the  Court  is  asked  to  exercise  jurisdiction  over  him  that  he  can 
elect  whether  he  will  submit  to  the  jurisdiction.  If  it  is  then 
shewn  that  he  is  an  independent  sovereign,  and  does  not  submit 
to  the  jurisdiction,  the  Court  has  no  jurisdiction  over  him.  It 
follows  from  this  that  there  can  be  no  inquiry  by  the  Court  into 
his  conduct  prior  to  that  date.  The  only  question  is  whether, 
when  the  matter  comes  before  the  Court,  and  it  is  shewn  that 
the  defendant  is  an  independent  sovereign,  he  then  elects  to 
submit  to  the  jurisdiction.  If  he  does  not  the  Court  has  no 
jurisdiction.  It  appears  to  me  that  this  is  the  result  of  the 
principles  laid  down  in  The  Parlement  Beige,  5  P.  D.  197. 
Therefore,  I  think  the  Court  has  no  jurisdiction  to  enter  into 
any  inquiry  into  the  matters  alleged  by  the  plaintiff,  the  de- 
fendant being  an  independent  sovereign,  and  not  submitting 
himself  to  the  jurisdiction.  For  these  reasons  the  appeal  must 
be  dismissed. 

[LOPES,  L.  J.  and  KAY,  L.  J.  delivered  concurring  opinions.] 


SOUTH  AFRICAN  REPUBLIC  v.  LA  COMPAGNIE 
FRANCO-BELGE  DU  CHEMIN  DE  FER  DU  NORD. 

CHANCERY  DIVISION  OF  THE  HIGH  COUBT  OF  JUSTICE  OF  ENGLAND.     1897. 
Law  Reports  [1898]  1  Ch.  190. 

[In  1882  the  defendant  corporation  was  formed  in  Belgium 
for  the  purpose  of  acquiring  and  working  a  railway  concession 
in  the  South  African  Republic.  A  difference  of  opinion  having 
arisen  between  the  Republic  and  the  company  as  to  the  control 
of  certain  of  the  company's  funds  on  deposit  in  England,  the 
South  African  Republic  instituted  an  action  in  answer  to  which 
the  defendants  set  up  a  counterclaim  by  which  it  claimed  pay- 
ment of  £208,800  on  account  of  alleged  breaches  of  the  terms  of 


208  EXEMPTIONS  FROM  JURISDICTION. 

the  concession,  and  of  £100,000  for  libel,  and  asked  that  the  Re- 
public be  enjoined  from  declaring  the  concession  void.  That 
part  of  the  counterclaim  relating  to  the  libel  was  struck  out  by 
the  court,  whereupon  the  plaintiffs  asked  that  the  other  portion 
of  the  counterclaim  should  also  be  struck  out.] 

NORTH,  J.  .  .  .  They  have  applied  now  that  the  other  por- 
tion of  the  counterclaim  may  be  struck  out  too.  They  say  that 
a  foreign  Government  coming  here  to  sue  can  be  met  by  defence 
or  counter-claim  with  respect  to  the  matters  incident  to  the  sub- 
ject-matter of  the  action  brought  by  the  foreign  Government; 
but  the  plaintiffs  deny,  and  the  defendants  allege  that,  by  the 
foreign  Government  coming  here  as  plaintiffs,  they  have  sub- 
mitted to  the  general  jurisdiction  of  the  Court,  so  as  to  be  ca- 
pable of  being  caught  and  sued  here  in  respect  of  any  matter 
which  would  be  a  proper  subject  of  litigation  between  them  if 
the  two  parties  were  private  individuals,  both  resident  in  this 
country,  and  subject  to  the  jurisdiction  of  its  Courts. 

Now,  on  that,  several  cases  were  cited  as  to  the  position  of  a 
foreign  Government  coming  here  to  sue.  There  are  only  two  or 
three  that  I  need  refer  to  very  shortly.  The  first  is  Duke  of 
Brunswick  v.  King  of  Hanover,  6  Beav.  38,  where  Lord  Lang- 
dale  says — I  need  only  read  a  few  lines  of  a  very  long  judgment 
— "The  cases  which  we  have  upon  this  point  go  no  further  than 
this ;  that  where  a  foreign  Sovereign  files  a  bill,  or  prosecutes  an 
action  in  this  country,  he  may  be  made  a  defendant  to  a  cross- 
bill or  bill  of  discovery  in  the  nature  of  a  defence  to  the  pro- 
ceeding, which  the  foreign  Sovereign  has  himself  adopted. 
There  is  no  case  to  shew  that,  because  he  may  be  plaintiff  in 
the  courts  of  this  country  for  one  matter,  he  may  therefore  be 
made  a  defendant  in  the  courts  of  this  country  for  another  and 
quite  a  distinct  matter;  and  the  question  to  be  now  determined 
is  independent  of  the  fact  stated  at  the  bar,  that  the  King  of 
Hanover  is  or  was  himself  plaintiff  in  a  suit  for  an  entirely 
distinct  matter  in  this  court."  It  is  clear  that  Lord  Langdale 
considered  the  law  settled.  There  may  be  a  proceeding  against 
a  foreign  government  plaintiff  by  way  of  counter-proceeding,  by 
cross-bill,  or,  what  I  take  to  be  not  the  same  as  a  cross-bill,  a 
bill  of  discovery — it  might  be  either  a  bill  of  discovery,  if  neces- 
sary, or  a  cross-bill — in  the  nature  of  a  defence  to  the  proceed- 
ings set  up  by  the  plaintiff;  but  not  a  proceeding  setting  up 


SO.  AFR.  REPUBLIC  v.  COMP.  FRANCO-BELGE.   209 

against  the  Sovereign  another  claim  in  respect  of  another  and 
entirely  distinct  matter. 

Then  there  was  a  case — Strousberg  v.  Republic  of  Costa  Rica, 
29  "W.  R.  125, — where  the  Republic  of  Costa  Rica  had  sued 
Strousberg  in  this  country,  and  judgment  had  been  recovered 
in  that  action  for  them.  There  had  been  a  final  judgment  for 
the  payment  of  large  sums  of  money;  there  had  been  no  cross- 
bill apparently,  or  cross-action,  pending  that  action;  but,  after 
it  was  disposed  of,  and  final  judgment  had  been  recovered, 
Strousberg  sought  to  sue  the  Government  of  Costa  Rica  in  this 
country  for  the  purpose  of  setting  up  a  claim  to  meet  the  claim 
of  the  Government  under  the  judgment.  That  proceeding  was 
clearly  wrong.  If  he  could  have  taken  any  step,  it  ought  to  have 
been  to  stay  proceedings  in  the  action  under  which  the  judg- 
ment had  been  recovered;  but  in  the  course  of  the  judgment 
both  the  Master  of  the  Rolls  and  James  L.  J.  made  certain  ob- 
servations, not  essential  for  the  judgment,  but  arising  out  of 
the  matter  before  the  Court,  that  are  useful  to  be  considered. 
Pollock  B.  had  made  an  order  in  chambers  allowing  service  of 
the  writ  in  this  new  action  upon  the  ground  that  it  was  in  the 
nature  of  a  cross-action.  Thereupon  the  Government  entered  a 
conditional  appearance  and  moved  to  discharge  the  order.  The 
Court  of  Appeal  decided  that  the  order  ought  not  to  have  been 
made,  and  ought  to  be  discharged.  The  Master  of  the  Rolls 
pointed  out  it  was  made  under  a  misunderstanding.  He  said, 
the  learned  judge  "was  told,  and  he  seems  to  have  adopted  the 
statement  without  sufficient  knowledge  of  the  prior  proceedings, 
that  it  was  in  the  nature  of  a  counter-claim  or  cross-action,  and 
in  that  case,  no  doubt, ' ' — that  is  to  say,  if  it  was  a  counter-claim 
or  cross-action — "you  can  make  a  Sovereign  State  a  defendant, 
with  a  view  of  doing  justice  in  the  original  action  brought  by 
the  Sovereign  State" — not  settling  every  possible  matter  in  dis- 
pute between  the  parties,  but  doing  justice  in  the  original  ac- 
tion. Then  James  L.  J.  says :  "It  appears  to  me  that  it  is  due 
from  one  nation  to  another,  that  one  Sovereign  should  not  as- 
sume or  usurp  jurisdiction  over  another  Sovereign.  It  is  a  vio- 
lation of  the  respect  due  to  a  foreign  Sovereign  or  State  to  issue 
the  process  of  our  Courts  against  such  Sovereign  or  State. 
There  is  but  one  exception,  if  it  can  be  called  an  exception,  to 
the  rule,  and  that  is  where  a  foreign  Sovereign  or  State  comes 
into  the  Courts  of  this  country  for  the  purpose  of  obtaining 
some  remedy;  then  by  way  of  defence  to  that  proceeding,  the 


210  EXEMPTIONS  FROM  JURISDICTION. 

r 

person  sued  here  may  file  a  cross-claim  against  that  Sovereign 
or  State  for  enabling  complete  justice  to  be  done  between  them. 
The  defendant  in  that  case  is,  in  fact,  only  giving  to  the  foreign 
Sovereign's  attorney  or  solicitor  notice  of  the  proceedings' — for 
that  is,  in  substance,  what  it  comes  to — so  as  to  bring  in  what- 
ever defence  or  counter-claim  there  might  be  as  a  set-off.  We 
went  recently  very  fully,  in  the  case  of  The  Parlement  Beige, 
5  P.  D.  197,  into  the  question  of  the  extent  to  which  the  Courts 
of  this  country  ought  to  go,  even  as  to  property  of  a  foreign 
Sovereign  found  here,  and  I  have  no  hesitation,  having  fully 
considered  the  matter,  in  arriving  at  the  conclusion  I  have  now 
stated."  Then  he  said  there  was  one  other  case  in  which  a  for- 
eign Sovereign  might  be  joined  as  defendant  to  an  action,  and 
that  was  where  he  was,  or  was  alleged  to  be,  one  of  several  claim- 
ants upon  a  fund  over  which  the  Court  had  jurisdiction.  I  do 
not  read  the  part  of  the  judgment  relating  to  that,  because  it 
is  not  material  to  the  case  here. 

Now,  I  believe  the  law  is  still  exactly  as  it  was  stated  to  be 
at  the  time  Lord  Langdale  laid  it  down  in  the  way  in  which 
he  did.  Here  the  defendant  has  brought  in  a  counter-claim, 
and  there  seem  to  me  to  be  two  questions  on  it,  first  of  all, 
whether  it  is  a  case  in  which,  having  regard  to  the  action  in 
which  the  foreign  Government  has  submitted  to  the  jurisdiction, 
this  is  a  case  in  which  a  counter-claim  such  as  this  can  properly 
be  put  in;  and,  secondly,  if  it  is,  whether  as  a  matter  of  con- 
venience, assuming  the  Court  could  allow  it,  it  is  more  conven- 
ient that  the  subject-matter  should  be  dealt  with  in  a  separate 
action,  or  in  this  action.  .  .  . 

[The  learned  judge  found  that  the  sums  of  money  alleged  in 
the  counterclaim  to  be  due  to  the  defendants  were  not  sums  in 
respect  of  which  the  defendants  had  any  claim  upon  the  fund 
then  in  question.  ' '  The  claim,  if  any,  is  against  the  Government 
for  particular  sums,  which  would  have  to  be  paid  by  the  Gov- 
ernment out  of  its  general  revenues,  and  for  which  there  is  no 
•  claim  on  the  fund  in  question  in  any  way."  The  counterclaim 
was  therefore  struck  out.] 

NOTE. — The  privileges  and  immunities  which  attach  to  sovereigns  and 
their  agents  when  in  foreign  territory  are  universally  recognized,  but 
the  most  eminent  authorities  have  differed  as  to  their  basis  and  their 
source.  Lord  Mansfield  derived  them  from  international  law.  Not 
having  been  conferred  by  any  one  state,  they  may  not  be  withdrawn 
by  any  one  state.  A  privilege  or  right  which  is  derived  from  all 


NOTE.  211 

may  only  be  cancelled  by  all,  Heathfield  v.  Chilton  (1767),  4  Burrow, 
2015.  Chief  Justice  Marshall  found  that  such  privileges  and  immuni- 
ties are  based  upon  a  tacit  or  implied  promise  to  refrain  from  exer- 
cising jurisdiction,  and  that  it  is  with  this  promise  in  mind  that 
sovereigns  enter  foreign  territory  or  send  their  diplomatic  representa- 
tives and  public  vessels  thither,  The  Schooner  Exchange  v.  McFad- 
don  (1812),  7  Cranch,  116.  If  this  be  true,  then  a  state  is  bound  to 
observe  such  immunities  only  with  reference  to  those  persons  who 
have  already  entered  its  jurisdiction,  but  it  is  free  to  give  notice  that 
for  the  future  it  will  assert  jurisdiction  over  all  persons  and  things 
within  its  limits.  Such  an  announcement  would  not  contravene  any 
promise  either  express  or  implied,  and  would  not  constitute  a  breach 
of  faith.  A  state  making  such  an  announcement  however  would  un- 
doubtedly be  met  by  the  claim  that  the  immunities  of  sovereigns  and 
their  agents  are  not  subject  to  alteration  by  any  one  member  of  the 
family  of  nations,  but  have  been  established  by  common  consent  and 
rest  upon  the  same  basis  as  do  all  other  rules  of  international  law. 

Although  doubt  was  once  expressed  by  Lord  Thurlow,  it  is  now 
well  settled  that  the  courts  both  of  law  and  of  equity  are  open  to  suits 
by  foreign  sovereigns,  Hullett  v.  King  of  Spain  (1828),  1  Dow.  & 
Clark,  169;  Duke  of  Brunswick  v.  King  of  Hanover  (1828),  2  H.  L. 
Cases,  1;  King  of  Prussia  v.  Kuepper  (1856),  22  Mo.  550.  It  was  once 
thought  that  the  suit  of  a  foreign  state  must  be  brought  in  the  name 
of  an  individual  upon  whom  process  could  be  served,  Colombian  Gov- 
ernment v.  Rothschild  (1826),  1  Sim.  94,  but  it  is  now  recognized  that 
suit  may  be  brought  in  the  name  of  the  state  itself,  United  States  v. 
Prioleau  (1865),  35  L.  J.  Ch.  (N.  S.)  7;  United  States  v.  Wagner 
(1867),  L,  R.  2  Ch.  582;  South  African  Republic  v.  La  Compagnie 
Franco-Beige  [1897]  2  Ch.  487.  While  the  property  of  a  state  is 
generally  exempt  from  judicial  process,  yet  if  it  is  in  the  possession 
of  a  person  subject  to  the  jurisdiction  of  a  court  of  equity,  the  court 
will  sometimes  control  its  disposition,  Gladstone  v.  Musurus  Bey 
(1862),  1  H.  &  M.  495;  Gladstone  v.  The  Ottoman  Bank  (1863),  1 
H.  &  M.  505.  In  the  important  case  of  von  Hellfeld  v.  Russian  Gov- 
ernment (1910),  Am.  Jour.  Int.  Law,  V,  490,  it  was  held  that  although 
the  Russian  Government  had  submitted  to  the  jurisdiction  of  the 
German  court  in  Kiao-chau,  execution  on  the  judgment  there  obtained 
against  Russia  could  not  issue  against  Russian  property  in  Berlin. 
While  a  state  is  exempt  from  suit  it  may  waive  its  immunity  either 
expressly,  Porto  Rico  v.  Ramos  (1914),  232  U.  S.  627,  or  by  entering 
its  appearance,  Richardson  v.  Fajardo  Sugar  Co.  (1916),  241  U.  S.  44, 
or  by  intervening  in  a  private  suit  to  protect  its  own  interests, 
Veitia  v.  Fortuna  Estates  (1917),  240  Fed.  256. 

If  a  sovereign  institutes  an  action  in  the  courts  of  another  country, 
he  subjects  himself  to  many  of  the  rules  applicable  to  private  liti- 
gants. "He  brings  with  him  no  privileges  that  can  displace  the  prac- 
tice as  applying  to  other  suitors,"  The  King  of  Spain  v.  Hullett 
(1838),  1  C.  &  F.  333;  The  Newbattle  (1885),  10  P.  D.  33.  He  may 
oe  required  to  give  security  for  costs,  Rothschild  v.  Queen  of  Portugal 
(1839),  3  Y.  &  C.  594;  Honduras  v.  Soto  (1889),  112  N.  Y.  310;  or  to 


212        EXEMPTIONS  FROM  JURISDICTION. 

meet  any  defenses,  set-offs  or  cross-bills  incident  to  the  subject-matter 
of  the  action,  The  Jane  Palmer  (1820),  270  Fed.  609;  or  to  be  bound 
by  a  lien  on  property  for  which  it  sues,  United  States  v.  Prioleau 
(1865),  35  L,  J.  Ch.  (N.  S.)  7.  But  a  counterclaim  independent  of 
the  original  transaction  or  which  could  be  made  the  basis  of  an 
affirmative  judgment  cannot  be  set  up  against  the  plaintiff,  Kingdom 
of  Roumania  v.  Guaranty  Trust  Co.  (1918),  250  Fed.  341.  In  this  re- 
spect a  sovereign  is  not  in  the  same  position  as  a  private  litigant, 
The  French  Republic  v.  Inland  Navigation  Co.  (1920),  263  Fed.  410. 
For  further  discussion  of  the  rights  and  immunities  of  sovereigns, 
see  Munden  v.  Duke  of  Brunswick  (1847),  10  Q.  B.  656;  Wolf  man, 
"Sovereigns  as  Defendants,"  Am.  Jour.  Int.  Law,  IV,  373;  Weston, 
"Actions  against  the  Property  of  Sovereigns,"  Harvard  Laic  Review, 
XXXII,  266;  van  Praag,  Juridiction  et  Droit  International  Public, 
438-453;  Cobbett,  Cases  and  Opinions,  I,  94;  Borchard,  sec.  72;  Bonfils 
(Fauchille),  sec.  632;  Hyde,  I,  430;  Moore,  Digest,  II,  558. 


SECTION  2.    DIPLOMATIC  AGENTS. 

THE  MAGDALENA  STEAM  NAVIGATION  COMPANY  v. 

MARTIN. 

COUBT   OF  QUEEN'S   BENCH   OP   ENGLAND.    1859. 
2  Ellis  &  Ellis,  94. 

LORD  CAMPBELL  C.  J.  now  delivered  the  judgment  of  the 
Court. 

The  question  raised  by  this  record  is,  whether  the  public 
minister  of  a  foreign  state,  accredited  to  and  received  by  Her 
Majesty,  having  no  real  property  in  England,  and  having  done 
nothing  to  disentitle  him  to  the  privileges  generally  belonging 
to  such  public  minister,  may  be  sued,  against  his  will,  in  the 
Courts  of  this  country,  for  a  debt,  neither  his  person  nor  his 
goods  being  touched  by  the  suit,  while  he  remains  such  public 
minister.  The  defendant  is  accredited  to  and  received  by  Her 
Majesty  as  Envoy  Extraordinary  and  Minister  Plenipotentiary 
for  the  Republics  of  Guatemala, and  New  Granada  respectively; 
and  a  writ  has  been  sued  out  against  him  and  served  upon  him, 
to  recover  an  alleged  debt,  for  the  purpose  of  prosecuting  this 
action  to  judgment  against  him  whilst  he  continues  such  public 
minister.  He  says,  by  his  plea  to  the  jurisdiction  of  the  Court, 
that,  by  reason  of  his  privilege  as  such  public  minister,  he  ought 
not  to  be  compelled  to  answer.  "We  are  of  opinion  that  his  plea 


MAGDALENA  STEAM  NAV.  CO.  v.  MARTIN.      213 

is  good,  and  that  we  are  bound  to  give  judgment  in  his  favour. 
The  great  principle  is  to  be  found  in  Grotius,  de  Jure  Belli  et 
Pads,  lib.  2,  c.  18,  s.  9.,  "Omnis  coactio  abesse  a  legato  debet." 
He  is  to  be  left  at  liberty  to  devote  himself  body  and  soul  to 
the  business  of  his  embassy.  He  does  not  owe  even  a  temporary 
allegiance  to  the  Sovereign  to  whom  he  is  accredited,  and  he  has 
at  least  as  great  privileges  from  suits  as  the  Sovereign  whom 
he  represents.  He  is  not  supposed  even  to  live  within  the  terri- 
tory of  the  Sovereign  to  whom  he  is  accredited,  and,  if  he  has 
done  nothing  to  forfeit  or  to  waive  his  privilege,  he  is  for  all 
juridical  purposes  supposed  still  to  be  in  his  own  country.  For 
these  reasons,  the  rule  laid  down  by  all  jurists  of  authority 
who  have  written  upon  the  subject  is,  that  an  ambassador  is 
exempt  from  the  jurisdiction  of  the  Courts  of  the  country  in 
which  he  resides  as  ambassador.  Whatever  exceptions  there 
may  be,  they  acknowledge  and  prove  this  rule.  The  counsel  for 
the  plaintiffs,  admitting  that  the  person  of  an  ambassador  can- 
not be  lawfully  imprisoned  in  a  suit,  and  that  his  goods  cannot 
be  taken  in  execution,  contended  that  he  might  be  cited  and 
impleaded ;  and  he  referred  to  the  decision  of  the  tribunal  at  the 
Hague,  in  1720,  which  is  reported  by  Bynkershoek,  and  was 
the  cause  of  that  great  jurist  writing  his  valuable  treatise  De 
Foro  Legatorum.  But  this  case  is  to  be  found  in  chap,  xiv., 
entitled  "De  Legato  Mercatore,"  in  which  is  explained  the  ex- 
ception of  an  ambassador  engaging  in  commerce  for  his  private 
gain.  The  Envoy  Extraordinary  of  the  Duke  of  Holstein  to 
the  States  General,  leaving  the  Hague,  where  he  ought  to  have 
resided,  " Amsterdamum  se  confert,  et  strenud  mercatorem  agit. 
Plurium  debitor  factus,  Hagam  revertitur,  sed  et  plures 
curiam  Hollandice  adeunt,  et  impetrant  mandatum  arresti  et 
in  jus  vocationis."  The  arrest  was  granted  to  operate  on  all 
goods,  money  and  effects  within  the  jurisdiction  of  the  tribunal, 
with  the  exception  of  the  movables,  equipages  and  other  things 
belonging  to  him  in  his  character  of  ambassador.  But  this 
citation  was  entirely  in  respect  of  his  having  engaged  in  com- 
merce, and  shews  that  otherwise  he  would  not  have  been  sub- 
ject to  the  jurisdiction  of  the  Dutch  Courts.  Lord  Coke's  au- 
thority (4  Inst.  153)  was  cited,  where,  writing  of  the  privileges 
of  an  ambassador,  having  said  that  "for  any  crime  committed 
contra  jus  gentium,  as  treason,  felony,  adultery,  or  any  other 
crime  which  is  against  the  law  of  nations,  he  loseth  the  privilege 
and  dignity  of  an  ambassador,  as  unworthy  of  so  high  a  place," 


214  EXEMPTIONS  FROM  JURISDICTION. 

he  adds,  "and  so  of  contracts  that  be  good  jure  gentium  he 
must  answer  here."  There  does  not  seem  to  be  anything  in  the 
contract  set  out  in  this  declaration  contrary  to  the  law  of  na- 
tions; but  Lord  Coke,  who  is  so  great  an  authority  as  to  our 
municipal  law,  is  entitled  to  little  respect  as  a  general  jurist. 

Mr.  Bovill,  being  driven  from  his  supposition  that  the  writ 
in  this  case  might  be  sued  out  only  to  save  the  Statute  of  Limi- 
tations, by  the  fact  that  it  had  been  served  upon  the  defendant, 
and  by  the  allegation  in  the  plea  that  it  was  sued  out  for  the 
purpose  of  prosecuting  this  action  to  judgment,  strenuously 
maintained  that  at  all  events  the  action  could  be  prosecuted  to 
that  stage,  with  a  view  to  ascertain  the  amount  of  the  debt,  and 
to  enable  the  plaintiffs  to  have  execution  on  the  judgment  when 
the  defendant  may  cease  to  be  a  public  minister.  But  although 
this  suggestion  is  thrown  out  in  the  discussion  which  took  place 
in  the  Common  Pleas,  in  Taylor  v.  Best,  14  Com.  B.  487,  493,  it 
is  supported  by  no  authority;  the  proceeding  would  be  wholly 
anomalous;  it  violates  the  principle  laid  down  by  Grotius;  it 
would  produce  the  most  serious  inconvenience  to  the  party  sued ; 
and  it  could  hardly  be  of  any  benefit  to  the  plaintiffs.  In  the  first 
place,  there  is  great  difficulty  in  seeing  how  the  writ  can  properly 
be  served,  for  the  ambassador's  house  is  sacred,  and  is  considered 
part  of  the  territory  of  the  sovereign  he  represents;  nor  could 
the  ambassador  be  safely  stopped  in  the  street  to  receive  the 
writ,  as  he  may  be  proceeding  to  the  Court  of  our  Queen,  or  to 
negotiate  the  affairs  of  his  Sovereign  with  one  of  her  ministers. 
It  is  allowed  that  he  would  not  be  bound  to  answer  interroga- 
tories, or  to  obey  a  subpoena  requiring  him  to  be  examined  as 
a  witness  for  the  plaintiffs.  But  he  must  defend  the  action, 
which  may  be  for  a  debt  of  100,OOOZ,  or  for  a  libel,  or  to  recover 
damages  for  some  gross  fraud  imputed  to  him.  He  must  retain 
an  attorney  and  counsel,  and  subpoena  witnesses  in  his  defence. 
The  trial  may  last  many  days,  and  his  personal  attendance 
may  be  necessary  to  instruct  his  legal  advisers.  Can  all  this 
take  place  without  "coactio"  to  the  ambassador?  Then,  what 
benefit  does  it  produce  to  the  plaintiffs?  There  can  be  no  exe- 
cution upon  it  while  the  ambassador  is  accredited,  nor  even 
when  he  is  recalled,  if  he  only  remains  a  reasonable  time  in 
this  country  after  his  recall.  In  countries  where  there  may  be 
a  citation  by  seizure  of  goods,  if  an  ambassador  loses  his  privi- 
lege by  engaging  in  commerce,  he  not  only  may  be  cited,  but 
all  his  goods  unconnected  with  his  diplomatic  functions  may  be 


MAGDALENA  STEAM  NAV.  CO.  v.  MARTIN.      215 

arrested  to  force  him  to  appear,  and  may  afterwards,  while  he 
continues  ambassador,  be  taken  in  execution  on  the  judgment. 

Reference  was  frequently  made  during  the  argument  to  stat.  7 
Anne.  c.  12. ;  but  it  can  be  of  no  service  to  the  plaintiffs.  The 
1st  and  2nd  sections  are  only  declaratory  of  the  law  of  nations, 
in  conformity  with  what  we  have  laid  down;  and  the  other 
sections,  which  regulate  procedure,  do  not  touch  the  extent  of 
the  immunity  to  which  the  ambassador  is  entitled.  The  Russian 
ambassador  had  been  taken  from  his  coach  and  imprisoned; 
but  the  statute  cannot  be  considered  as  directed  only  against 
bailable  process.  The  writs  and  processes  described  in  the  3rd 
section  are  not  to  be  confined  to  such  as  directly  touch  the  per- 
son or  goods  of  an  ambassador,  but  extend  to  such  as,  in  their 
usual  consequences,  would  have  this  effect.  At  any  rate,  it  never 
was  intended  by  this  statute  to  abridge  the  immunity  which  the 
law  of  nations  gives  to  ambassadors,  that  they  shall  not  be  im- 
pleaded  in  the  Courts  of  the  country  to  which  they  are  ac- 
credited. An  argument  was  drawn  from  the  course  pursued  in 
some  instances  of  setting  aside  bail  bonds  given  by  persons 
having  the  privilege  of  ambassadors,  or  their  servants,  on  filing 
common  bail.  This,  perhaps,  is  as  much  as  could  reasonably  be 
asked  on  a  summary  application  to  the  Court,  but  does  not 
shew  that  the  action  may  not  be  entirely  stopped  by  a  plea 
regularly  pleaded  to  the  jurisdiction  of  the  Court. 

Some  inconveniences  have  been  pointed  out  as  arising  from 
this  doctrine,  which,  we  think,  need  not  be  experienced.  If  the 
ambassador  has  contracted  jointly  with  others,  the  objection 
that  he  is  not  joined  as  a  defendant  may  be  met  by  shewing 
that  he  is  not  liable  to  be  sued.  As  to  the  difficulty  of  remov- 
ing an  ambassador  from  a  house  of  which  he  unlawfully  keeps 
possession,  DeWicquefort,  and  other  writers  of  authority  on 
this  subject,  point  out  that  in  such  cases  there  may  be  a  specific 
remedy  by  injunction.  Those  who  cannot  safely  trust  to  the 
honour  of  an  ambassador,  in  supplying  him  with  what  he  wants, 
may  refuse  to  deal  with  him  without  a  surety,  who  may  be  sued ; 
and  the  resource  is  always  open  of  making  a  complaint  to  the 
government  by  which  the  ambassador  is  accredited.  Such  in- 
conveniences are  trifling,  compared  with  those  which  might  arise 
were  it  to  be  held  that  all  public  ministers  may  be  im pleaded 
in  our  municipal  Courts,  and  that  judgment  may  be  obtained 
against  them  in  all  actions,  either  ex  contractu  or  ex  deli^to. 
It  certainly  has  not  hitherto  been  expressly  decided  that  a 


216  EXEMPTIONS  FROM  JURISDICTION. 

public  minister  duly  accredited  to  the  Queen  by  a  foreign  state 
is  privileged  from  all  liability  to  be  sued  here  in  civil  actions, 
but  we  think  that  this  follows  from  well  established  principles, 
and  we  give  judgment  for  the  defendant. 

Judgment  for  the  defendant. 


PARKINSON  v.  POTTER. 

QUEEN'S  BENCH  DIVISION  OF  THE  HIGH  COUET  OF  JUSTICE  OF  ENGLAND. 

1885. 
Law  Reports,  16  Q.  B.  D.  152. 

Appeal  from  the  Westminster  County  Court. 

WILLS,  J.  The  plaintiff  in  this  case  sues  the  defendant  for 
parochial  rates  which  he  has  paid,  and  which  he  contends  he  is 
entitled  to  be  repaid  by  virtue  of  the  defendant's  covenant  with 
him.  The  plaintiff  is  the  owner  and  the  defendant  the  lessee  of 
a  house,  in  respect  of  the  occupation  of  which  the  rates  were 
assessed.  The  defendant  has  assigned  or  sublet  to  Senhor  Pinto 
de  Basto,  who  is  said  to  be  an  attache  of  the  Portuguese  embassy 
and  who  has  on  that  ground  refused  to  pay  them.  Under  a  local 
act  the  landlord  is  liable  in  such  a  case;  and  the  first  question 
that  arises  is  whether  the  person  in  question  was  entitled  to  the 
immunity  which  he  has  claimed. 

The  evidence  that  Senhor  Pinto  de  Basto  is  an  attache  to  the 
Portuguese  legation  is  slight,  but  I  think  there  is  evidence  of 
the  fact.  .  .  . 

An  attache  is  a  well-known  term  in  the  diplomatic  service. 
He  forms  part  of  the  regular  suite  of  an  ambassador.  He  is 
classed  by  Calvo,  the  author  of  an  elaborate  French  work  on 
International  Law,  published  in  1880,  and  written  with  admir- 
able clearness  and  with  a  copiousness  of  historical  illustration 
which  makes  his  treatise  most  interesting  as  well  as  instructive, 
along  with  "Conseillers  et  Secretaires,"  and  he  gives  a  com- 
mon description  of  the  functions  of  all  three  classes  of  officers 
as  consisting  in  supporting  the  minister  in  all  things  in  prepar- 
ing and  forwarding  official  despatches,  in  carrying  out  com- 
munications by  word  of  mouth  with  the  public  administrative 
authorities  of  the  country  to  which  the  minister  is  accredited, 


PARKINSON  v.  POTTER.  217 

in  classifying  and  keeping  charge  of  the  archives  of  the  mission, 
in  ciphering  and  deciphering  despatches,  in  making  minutes  of 
the  letters  which  the  minister  may  have  to  write,  and  similar 
services ;  and  he  treats  the  attache  as  undoubtedly  entitled  to  all 
the  immunities  accorded  to  the  suite  of  an  ambassador:  Calvo, 
International  Law,  vol.  i.,  p.  486. 

One  of  these  immunities,  insisted  upon  by  all  writers  on  In- 
ternational Law  with  whose  works  I  have  any  acquaintance,  as 
beyond  question,  is  the  complete  exemption  from  the  jurisdiction 
of  the  Courts  of  the  country  to  which  the  minister  is  accredited. 
They  are  all,  so  far  as  I  have  been  able  to  ascertain,  equally 
clear  in  the  opinion  that  the  exemption  extends  to  the  family 
and  suite  of  the  ambassador.  "This  immunity,"  says  "Wheaton, 
' '  extends  not  only  to  the  person  of  the  minister  but  to  his  fam- 
ily and  suite,  secretaries  of  legation  and  other  secretaries,  his 
servants,  movable  effects,  and  the  house  in  which  he  resides": 
International  Law,  ed.  1863,  p.  394.  Again,  "the  wife  and 
family,  servants,  and  suite  of  the  minister  participate  in  the 
inviolability  attached  to  his  public  character":  Ibid.  397.  For 
these  propositions  he  quotes  Grotius,  Bynkershoek,  Vattel,  and 
Martens,  and  he  treats  these  privileges  as  essential  to  the  dig- 
nity of  his  sovereign  and  to  the  duties  he  is  bound  to  perform. 
Martens  says,  "The  exemption  from  civil  jurisdiction,  conten- 
tious and  voluntary  alike,  is  general,  and  belongs  to  ministers 
throughout  the  whole  extent  of  the  country  in  which  they  reside. 
They  enjoy  it  for  themselves,  for  their  suite,  and  for  their 
effects,  in  as  far,  be  it  always  understood,  as  they  do  not  travel 
out  of  their  diplomatic  character ' ' ;  Guide  Diplomatique,  vol. 
i,  p.  81.  To  the  same  effect  is  the  statement  by  Calvo:  "The 
staff  of  the  mission,  the  wife  and  family  of  the  diplomatic 
agent,  participate  in  these  prerogatives,"  and  amongst  the  pre- 
rogatives there  enumerated  is  that  "he  is  exempt  from  the  local 
jurisdiction  of  the  country  into  which  he  is  sent;  no  legal  pro- 
cess can  be  brought  against  him  before  the  tribunals  of  the  place 
of  his  residence":  vol.  i,  p.  381.  "The  person  who  enjoys 
exterritoriality,"  says  the  German  Bluntschli,  "cannot  be  sub- 
jected to  any  impost":  International  Law  Codified,  art.  138. 
"The  family,  the  staff,  the  suite,  and  the  servants  of  him  who 
has  the  right  of  exterritoriality,"  says  the  same  writer,  "enjoy 
the  same  immunity  as  himself.  His  suite  have  the  right  but 
indirectly  and  on  account  of  him  to  whom  they  are  attached": 


218  EXEMPTIONS  FROM  JURISDICTION. 

art.  145.  "Such  persons  are  exempt  from  jurisdiction":  art. 
147.  "The  immunity  of  the  person  exempted  extends  to  the 
members  of  his  suite":  Heffter,  International  Law  of  Europe, 
sec.  42,  VI.  These  are  amongst  the  most  recent  French  and 
German  authorities  upon  the  subject,  and  are  for  the  most  part 
subsequent  to  those  cited  in  the  elaborate  arguments  in  Taylor 
v.  Best,  14  C.  B.  487,  and  Magdalena  Steam  Navigation  Co.  v. 
Martin,  2  E.  &  E.  94;  and,  so  far  as  I  have  been  able  to  ascer- 
tain, no  writer  on  international  law  appears  to  entertain  any 
doubt  upon  this  point. 

It  was  urged  for  the  defendant  that  there  are  English  au- 
thorities conflicting  with  these  propositions.  I  do  not  think 
it  is  so,  if  they  are  carefully  considered.  It  was  said  that  in 
Fisher  v.  Begrez,  1  C.  &  M.  117,  it  was  held  that  the  goods  of 
a  chorister  to  the  Bavarian  embassy  were  not  privileged  from 
execution  under  a  fi.  fa. :  but  in  that  case  the  sheriff  had  not 
executed  the  fi.  fa. ;  nor  was  the  protection  of  the  Court  claimed 
by  the  ambassador  or  his  servant.  •  The  sheriff  claimed  to  be 
exempt  from  the  duty  of  levying.  The  defendant  had  allowed 
himself  to  be  sued  and  the  action  to  proceed  to  judgment  and 
execution  without  claiming  the  privilege,  and  the  sheriff  applied 
to  the  Court  upon  affidavits  which  were  quite  insufficient  to  show, 
and  failed  to  satisfy  the  Court,  that  there  was  any  foundation 
for  the  allegation  that  the  defendant  was  then  in  the  service 
of  the  Bavarian  minister. 

In  Novello  v.  Toogood,  1  B.  &  C.  554,  it  was  held  that  the 
goods  of  a  chorister  in  the  service  of  the  Portuguese  ambassador 
were  not  privileged  from  distress  for  poor-rates.  But  in  that 
case  the  servant  was  carrying  on  the  business  of  a  lodging-house 
keeper  in  the  house  in  question.  Most  writers  on  international 
law  say  that  with  regard  to  an  ambassador  even,  although  he 
does  not  lose  his  privileges  as  an  ambassador  by  engaging  in 
trade  in  the  country  to  which  he  is  accredited,  yet  the  immunity 
of  his  goods  does  not  extend  to  protect  his  stock  in  trade.  The 
ratio  decidendi  in  Novello  v.  Toogood  is  that  the  plaintiff 
Novello,  who  claimed  exemption  from  poor-rate,  was  carrying 
on  the  business  of  a  lodging-house  keeper  in  the  house  in  ques- 
tion. 

An  exception  from  the  privilege  of  being  exempt  from  juris- 
diction is,  by  the  statute  of  7  Ann.  c.  12,  s.  5,  specifically  applied 
to  the  case  of  an  ambassador's  servant  carrying  on  a  trade;  and 
in  Novello  v.  Toogood,  Abbott,  C.  J.,  so  far  from  hinting  a  doubt 


PARKINSON  v.  POTTER.  219 

as  to  the  general  principle  that  the  immunity  from  process  ex- 
tends to  the  servant  of  the  ambassador,  observes,  "I  do  not  say 
that  he  may  not  have  a  house  fit  and  convenient  for  his  situation 
as  the  servant  of  an  ambassador,  nor  that  the  furniture  in  such 
a  house  will  not  be  privileged."  It  may  be  added  that  Novello 
was  a  British -born  subject,  and  that  most  writers  on  inter- 
national law  are  of  opinion  that  a  subject  of  the  country  in 
which  the  ambassador  is  resident  remains  subject  to  the  law 
of  his  country,  and  that  in  respect  of  him  the  immunity  which 
would  be  afforded  to  a  foreigner  cannot  be  claimed.  Poitier  v. 
Croza,  1  "Wm.  Bl.  48,  was  cited,  but  in  that  case  the  court  was 
convinced  that  the  alleged  service  was  a  sham. 

Reliance  was  placed  on  Taylor  v.  Best,  14  C.  B.  487,  490. 
But  the  substance  of  the  decision  in  that  case  was  that,  where 
the  ambassador  had  voluntarily  appeared  as  one  of  several 
defendants,  and  defended  the  action  up  to  judgment,  he  had 
waived  his  privilege,  and  it  was  too  late  for  him  to  apply  to 
have  all  further  proceedings  stayed  or  to  have  his  own  name 
struck  out  of  the  record.  It  is  true  that  Maule,  J.,  expressed 
doubts  as  to  whether  an  ambassador  in  England  could  claim 
a  complete  immunity  from  all  English  process.  But  that  doubt 
was  removed  and  pronounced  to  be  ill-founded  in  the  considered 
and  elaborate  judgment  of  the  Court  of  Queen's  Bench  in  Mag- 
dalena  Steam  Navigation  Co.  v.  Martin,  2  E.  &  E.  94,  in  which 
it  was  held  that  the  minister  of  a  foreign  country  cannot  be 
sued  against  his  will  in  this  country,  although  the  action  may 
arise  out  of  commercial  transactions  carried  on  by  him  here. 
There  is,  therefore,  nothing  in  the  current  of  English  author- 
ities to  contravene  the  doctrine  of  exemption  from  process — a 
part  of  the  privileges  which  constitute  the  "exterritoriality"  of 
foreign  .jurists — as  laid  down  by  the  writers  on  international 
law:  and  there  is  nothing  in  the  circumstances  of  this  case  to 
prevent  its  application  to  Senhor  de  Basto.  He  is  not  carrying 
on  trade  nor  letting  lodgings ;  and  the  house  in  question  is  sim- 
ply the  private  residence  of  himself  and  his  family ;  and  I  am  of 
opinion  that  he  was  not  liable  to  pay  the  rates  assessed  upon 
him  in  respect  of  his  occupation. 

It  follows  that  under  s.  190  of  the  local  Act  the  plaintiff,  as 
the  landlord  of  his  house,  was  liable  to  pay  them;  and,  having 
paid  them,  it  is  clear  that,  under  the  covenant  sued  upon,  the 
defendant  is  bound  to  recoup  him.  The  judgment  of  the  county 


220  EXEMPTIONS  FROM  JURISDICTION. 

court  judge  was  right,  therefore,  and  the  appeal  must  be  dis- 
missed with  costs. 

Appeal  dismissed. 
[MATHEW,  J.,  delivered  a  concurring  opinion.] 


IN  RE  REPUBLIC  OF  BOLIVIA  EXPLORATION 
SYNDICATE,  LIMITED. 

^. 

CHANCEBY  DIVISION  OF  THE  HIGH  COURT  OF  JUSTICE  OF  ENGLAND.    1913. 
Law  Reports  [1914]  1  Ch.  139. 

Misfeasance  Summons. 

On  May  7,  1912,  the  liquidator  of  the  above  company  issued 
this  summons  against  the  directors,  T.  H.  Myring,  R.  E. 
Lembcke,  and  Paul  E.  Vanderpump  (since  deceased),  and  the 
auditors  "Woodington  and  Bubb,  claiming  damages  for  various 
acts  of  misfeasance. 

On  the  hearing  of  the  summons  R.  E.  Lembcke  took  the  pre- 
liminary objection  that  as  a  second  secretary  of  the  Peruvian 
Legation  he  was  entitled  to  diplomatic  privilege. 

The  liquidator  admitted  that  R.  E.  Lembcke  was  entitled  to 
diplomatic  privilege,  but  contended  that  he  had  waived  it. 

The  facts  relating  to  this  point  were  as  follows.  On  May 
15,  1912,  R.  E.  Lembcke  entered  an  unconditional  appearance 
to  the  summons,  and  on  October  14,  1912,  he  issued  a  summons 
for  further  time  to  file  evidence.  On  October  31,  1912,  he  swore 
an  affidavit  on  the  merits,  stating  his  official  position,  but  not 
raising  any  objection  to  the  jurisdiction.  On  June  10,  1913,  the 
case  was  mentioned  in  Court  on  an  application  by  the  liquida- 
tor to  fix  a  time  for  hearing,  and  R.  E.  Lembcke 's  counsel 
then  stated  that  he  should  insist  on  his  diplomatic  privilege. 
The  objection  was  taken  with  the  sanction  and  at  the  wish  of 
the  Peruvian  Legation.  . 

ASTBURY  J.     .     .     .     The  liquidator  admits  that  apart  from 
the  question  of  waiver  R.  E.  Lembcke  is  privileged,  and  the  - 
question  I  have  to  decide  is  whether  the  summons  shall  proceed 
against  him  under  the  special  circumstances  of  this  case. 

The  exact  point,  namely,  whether  a  public  minister  sued  indi- 
vidually and  not  as  one  of  several  joint  contractors,  as  in  Taylor 
v.  Best,  14  C.  B.  487,  can  waive  his  privilege,  has  not  been 


IN  BE  BOLIVIA  EXPLORATION  SYNDICATE.     221 

directly  determined;  but  in  Barbuit's  Case,  Gas.  t.  Tal.  281, 
Talbot  L.  C.  expressed  an  opinion  to  the  contrary,  although 
the  privilege  was  not  claimed  until  ten  years  after  action 
brought.  Talbot  L.  C.  said:  "A  bill  was  filed  in  this  Court 
against  the  defendant  in  1725  upon  which  he  exhibited  his  cross 
bill,  stiling  himself  merchant.  On  the  hearing  of  these  causes 
the  cross  bill  was  dismissed;  and  in  the  other,  an  account  de- 
creed against  the  defendant.  The  account  being  passed  before 
the  Master,  the  defendant  took  exceptions  to  the  Master's  re- 
port, which  were  overruled;  and  then  the  defendant  was  taken 
upon  an  attachment  for  non-payment,  etc.  And  now,  ten  years 
after  the  commencement  of  the  suit,  he  insists  he  is  a  public 
minister,  and  therefore  all  the  proceedings  against  him  null  and 
void.  Though  this  is  a  very  unfavourable  case,  yet  if  the  de- 
fendant is  truly  a  public  minister,  I  think  he  may  now  insist 
upon  it;  for,  the  privilege  of  a  public  minister  is  to  have  his 
person  sacred  and  free  from  arrests,  not  on  his  own  account, 
but  on  the  account  of  those  he  represents;  and  this  arises  from 
the  necessity  of  the  thing,  that  nations  may  have  intercourse 
with  one  another  in  the  same  manner  as  private  persons,  by 
agents,  when  they  cannot  meet  themselves.  And  if  the  founda- 
tion of  this  privilege  is  for  the  sake  of  the  prince  by  whom  an 
ambassador  is  sent,  and  for  sake  of  the  business  he  is  to  do,  it  is 
impossible  that  he  can  renounce  such  privilege  and  protection: 
for,  by  his  being  thrown  into  prison  the  business  must  inevitably 
suffer."  This  passage,  though  only  a  dictum,  as  Barbuit  was 
not  in  fact  a  public  minister,  is  of  very  great  weight. 

The  question  before  me  is  whether  or  no  Taylor  v.  Best,  14 
C.  B.  487,  is  an  absolute  decision  as  to  the  possibility  of  waiver. 
I  will  first  refer  to  the  earlier  dicta  or  decisions.  In  Triquet 
v.  Bath,  3  Burr.  1478,  1480,  Lord  Mansfield  said:  "This  privi- 
lege of  foreign  ministers  and  their  domestic  servants  depends 
upon  the  law  of  nations.  The  Act  of  Parliament  7  Ann.  c.  12 
is  declaratory  of  it.  All  that  is  new  in  this  Act,  is  the  clause" 
— s.  4 — "which  gives  a  summary  jurisdiction  for  the  punish- 
ment of  the  infractors  of  this  law."  In  Hopkins  v.  De  Robeck, 
3  T.  R.  79,  80,  Buller  J.  said:  "The  statute  of  Ann  is  only 
explanatory  of  the  law  of  nations;  and  the  words  'domestic 
and  domestic  servant'  are  only  put  by  way  of  example.  The 
privilege  was  held,  in  the  case  in  Burrow,  3  Burr.  1478,  1480, 
to  extend  to  secretaries." 

In  Taylor  v.  Best,  14  C.  B.  487,  relied  on  by  the  liquidator,  the 


222  EXEMPTIONS  FROM  JURISDICTION. 

action  was  brought  against  Best,  Drouet,  Sperling,  and  Clarke 
as  directors  to  recover  2501,  paid  as  a  deposit  on  shares.  Drouet 
was  in  fact  First  Secretary  of  the  Belgian  Legation.  Best, 
Drouet,  and  Sperling  pleaded  severally  never  indebted.  Clarke 
suffered  judgment  by  default.  Notice  of  trial  was  given,  and  on 
December  8,  1853,  Drouet  obtained  a  rule  for  a  special  jury. 
Two  days  later  he  issued  a  summons  calling  upon  the  attorneys 
for  the  plaintiff  and  for  the  defendants  Best  and  Sperling  to 
shew  cause  why  the  action  should  not  be  stayed,  on  the  ground 
of  diplomatic  privilege.  The  plaintiff  contended  that  the  privi- 
lege had  been  waived.  The  exact  facts  of  waiver  relied  on  are 
stated  in  the  plaintiff's  argument,  14  C.  B.  498,  namely,  "that, 
on  the  writ  being  issued,  the  plaintiff's  attorney  wrote  to  the 
defendant  Drouet,  to  inquire  the  name  of  his  solicitor  to  whom 
he  should  send  the  process  for  an  undertaking  to  appear ;  that, 
in  answer  to  such  inquiry,  he  received  a  letter  from  the  attor- 
neys of  M.  Drouet,  requesting  that  the  writ  might  be  sent  to 
them  for  that  purpose ;  that  an  appearance  was  duly  entered, 
and  that,  after  time  obtained  to  plead,  and  after  issue  joined, 
a  rule  for  a  special  jury  was  obtained  on  behalf  of  Drouet." 
Jervis  C.  J.  said:  "There  is  no  doubt  that  the  defendant  Drouet 
fills  the  character  of  a  public  minister  to  which  the  privilege 
contended  for  is  applicable;  and  I  think  it  is  equally  clear, 
that,  if  the  privilege  does  attach,  it  is  not,  in  the  case  of  an 
ambassador  or  public  minister,  forfeited  by  the  party's  engag- 
ing in  trade,  as  it  would,  by  virtue  of  the  proviso  in  the  7  Anne, 
c.  12,  s.  5,  in  the  case  of  an  ambassador's  servant.  .  .  .  Ad- 
mitting, then,  that  M.  Drouet  is  a  person  entitled  to  the  privi- 
leges and  immunities  which  the  law  of  England  accords  to 
ambassadors  from  foreign  friendly  Courts,  and  that  he  does  not 
forfeit  them  by  engaging  in  commercial  ventures, — the  question 
is,  whether  he  is,  under  all  the  circumstances  disclosed  by  the 
affidavit  before  us,  entitled  to  the  privilege  which  he  claims. 
.  .  .  The  action  is  brought  against  four  defendants, — the  writ 
being  sued  out  against  M.  Drouet  and  the  three  others  as  joint- 
contractors.  No  doubt,  the  plaintiff  was  bound,  at  the  peril  of  a 
plea  in  abatement,  to  sue  all.  The  writ  being  issued,  nothing 
is  done  upon  it  which  can  at  all  interfere  with  the  exercise  by 
M.  Drouet  of  his  diplomatic  functions,  or  with  his  personal 
comfort  or  dignity.  But,  knowing  that  a  writ  lias  issued,  or 
having  reason  to  believe  that  it  is  about  to  issue,  he  causes  his 
attorney  to  write  to  the  plaintiff's  attorney,  desiring  that  the 


IN  RE  BOLIVIA  EXPLORATION  SYNDICATE.     223 

process  may  be  sent  to  him  for  an  undertaking  to  appear.    He, 
therefore,  voluntarily  attorns  and  submits  himself  to  the  juris- 
diction of  the  Court.     Under  these  circumstances,  I  think  he 
cannot  be  permitted  now  to  complain  that  the  suit  has  been  im- 
properly  instituted   against  him.     On   the   contrary,   I   think, 
that,  by  analogy  to  the  doctrine  cited  from  the  learned  jurists 
whose  works  have  been  so  laboriously  consulted,  the  action  may 
well  be  maintained.     It  is  said, — and  perhaps  truly  said, — that 
an  ambassador  or  foreign  minister  is  privileged  from  suit  in  the 
Courts  of  the  country  to  which  he  is  accredited,  or,  at  all  events, 
from  being  proceeded  against  in  a  manner  which  may  ultimately 
result  in  the  coercion  of  his  person,  or  the  seizure  of  his  personal 
effects  necessary  to  his  comfort  and  dignity;  and  that  he  can- 
not be  compelled,  in  invitum,  or  against  his  will,  to  engage  in 
any  litigation  in  the  Courts  of  the  country  to  which  he  is  sent. 
But  all  the  foreign  jurists  hold,  that,  if  the  suit  can  be  founded 
without  attacking  the  personal  liberty  of  the  ambassador,  or 
interfering  with  his  dignity  or  personal  comfort,  it  may  pro- 
ceed."    It  is  clear  that  that  view  of  the  foreign  jurists  is  not 
the  law  of  this  country.     .     .     .     "I  do  not  feel  myself  at  all 
pressed  by  the  argument  urged  by  Mr.  Willes,  that  the  privi- 
lege in  question  being  the  privilege  of  the  Sovereign,  cannot  be 
abandoned  or  waived  by  the  ambassador :  for,  when  the  author- 
ities upon  which  that  argument  is  sought  to  be  sustained,  come 
to  be  examined,  they  do  not  shew  that  the  ambassador  may  not 
submit  himself  to  the  jurisdiction,  for  the  purpose  of  having 
the  matter  in  difference  investigated  and  ascertained;  but  only 
that  the  sacred  character  of  the  person  of  the  ambassador  cannot 
be  affected  by  any  act  or  consent  on  his  part ;  and  that,  by  inter- 
fering with  the  person  of  the  ambassador,  or  with  the  goods 
which  are  essential  to  the  personal  comfort  and  dignity  of  his 
position,  you  are  in  effect  attacking  the  privilege  of  his  master. 
That,  however,  is  not  the  case  here : ' ' — then  follows  a  very  im- 
portant  passage — "for   anything  that   appears,   M.   Drouet   is 
sued, — he  being  a  joint-contractor,  and  so  a  necessary  party  to 
the  action, — merely  for  the  purpose  of  ascertaining  the  liability 
of  the  other  defendants.     If  he  had  not  thought  fit  to  attorn 
to  the  jurisdiction,  but  had  allowed  judgment  to  go  against 
him  by  default,  non  constat  that  anything  would  have  been 
done  upon  the  judgment,  otherwise  than  by  enforcing  it  against 
the  other  defendants.    If  any  ca.  sa.  or  fi.  fa.  were  issued  against 
him  upon  the  judgment,  the  statute  of  Anne  would  have  applied, 


224  EXEMPTIONS  FROM  JURISDICTION. 

and  the  Court  might  have  been  called  upon  to  interfere  to  pre- 
vent its  being  put  in  force  against  him.    It  seems  to  me  that  M. 
Drouet  here  has  courted  the  jurisdiction,  and  that  we  ought  not 
to  interfere."    Then  Maule  J.  says:    "I  am  of  opinion,  that,  as 
M.  Drouet  has  voluntarily  appeared  to  the  action,  and  allowed 
it  to  go  on  through  several  stages,  so  that  the  application  could 
not  be  granted  without  prejudice  to  the  rights  of  the  other 
defendants,  as  well  as  to  those  of  the  plaintiff,  the  present  mo- 
tion ought  not  to  succeed. ' '    Of  course  that  point  does  not  apply 
here,  as  the  liquidator  can  go  on  against  the  other  defendants. 
.     .     .    Aftef  referring  to  the  cases  of  applications  on  behalf 
of  domestic  servants  of  ambassadors,  Maule  J.  proceeds :   ' '  These 
cases  do  not  in  any  degree  determine  the  point  which  has  been 
attempted  to  be  raised  on  the  present  occasion, — and  undoubt- 
edly it  is  a  point  which  is  very  fit  to  be  considered  whenever  it 
may  be  properly  presented  for  decision, — viz.    Whether  an  am- 
bassador or  public  minister  can  be  brought  into  Court  against 
his  will,  by  process  not  immediately  affecting  either  his  person 
or  his  property,  and  have  his  rights  and  liabilities  ascertained 
and  determined.     Unquestionably  it  must  to  a  certain  extent 
interfere  with  the  ambassador's  comfort  to  have  his  rights  in 
any  way  made  the  subject  of  litigation;  and  therefore  it  may 
well  be  that  the  privilege  he  enjoys  is  as  large  and  extensive  as 
Mr.  Justice  Blackstone  affirms  it  to  be.     But  it  is  unnecessary 
to  determine  that  question  upon  the  present  occasion," — it  has 
since  been  absolutely  determined — "because,  whatever  may  be 
the  extent  of  the  ambassador's  privilege  in  that  respect,  I  think, 
that,  where  he  is  sued  jointly  with  others,  and  appears  to  the 
process,  and  allows  the  suit  to  go  on  to  an  advanced  stage  with- 
out offering  any  objection,  and  where  there  does  not  appear  to 
be-  any  intention  on  the  part  of  the  plaintiff  to  interfere  with 
either  the  person  or  the  property  of  the  ambassador,  and  where 
the  action  may  proceed  to  its  ultimate  termination  without  any 
such  molestation  or  interference,  we  should  do  wrong  to  give 
effect  to  a  claim  of  privilege  which  has  been  so  abandoned  by 
the  voluntary  act  of  the  party." 

Before  passing  on  it  is  necessary  to  observe  that  this  is  a 
decision  of  the  Court  of  Common  Pleas  that  in  certain  cases  and 
in  certain  ways  and  to  a  certain  extent  a  diplomatic  agent  can 
waive  his  privilege,  and  that  in  the  particular  case  before  that 
Court  Drouet  was  a  joint  contractor,  treated  as  a  necessary 
party,  and  it  did  not  appear  that  the  plaintiff  intended  to  en- 


IN  RE  BOLIVIA  EXPLORATION  SYNDICATE.     225 

force  any  remedy  against  him,  or  that  he  was  more  than  a  form- 
al defendant.  Having  appeared  and  taken  steps  and  allowed 
the  action  to  go  through  several  stages  he  was  not  allowed  sub- 
sequently to  insist  on  his  privilege  so  as  to  cause  the  action  to 
abate  to  the  prejudice  of  the  plaintiff  and  his  codefendants  who 
had  incurred  expense  in  reliance  on  his  apparent  waiver.  It 
was  under  those  special  circumstances  that  the  Court  held  the 
privilege  had  been  waived.  .  .  . 

[The  learned  judge  here  discusses  Magdalena  Steam  Naviga- 
tion Co.  v.  Martin  (1859)-,  2  E.  &  E.  94.] 

In  Musurus  Bey  v.  Gadban,  [1894]  1  Q.  B.  533;  2  Q.  B.  352, 
the  plaintiff  as  executor  of  the  Turkish  ambassador  Musurus 
Pacha  was  interested  in  arguing  that  the  ambassador's  privilege 
was  not  absolute.  In  the  Divisional  Court  Wright  J.  said :  "To 
some  extent,  the  point  raised  to-day  is  new.  It  is  this:  Admit- 
ting that  Musurus  Pacha,  whilst  he  retained  his  privilege,  could 
not  have  been  sued  to  judgment  or  execution,  still  it  is  said  that 
a  writ  could  have  been  issued  against  him  for  the  purpose  of 
avoiding  the  application  of  the  Statute  of  Limitations,  and, 
therefore,  that  the  statute  began  to  run  whilst  he  was  in  Eng- 
land." — That  refers  to  the  issue  of  an  ordinary  writ. — "We 
think,  on  the  whole,  that  we  ought  to  follow  the  indication  of 
opinion  of  Lord  Campbell  in  Magdalena  Steam  Navigation  Co. 
v.  Martin,  2  E.  &  E.  94,  to  the  effect  that  the  statute  7  Anne, 
c.  12,  prohibits  and  makes  null  and  void  the  issue  of  any  writ 
or  process  against  an  ambassador,  and  not  merely  writs  or  proc- 
esses in  the  nature  of  writs  of  execution."  Several  passages  in 
the  judgments  of  the  Court  of  Appeal  must  also  be  referred  to. 
A.  L.  Smith  L.  J.  said,  [1894]  2  Q.  B.  351,  that  the  plaintiff's 
counsel  "did  not  assert,  for  this  would  have  been  useless,  that 
Musurus  Pacha  could  have  been  effectively  sued  during  the 
period  he  was  de  facto  ambassador  in  London,  for  the  case  of 
Magdalena  Steam  Navigation  Co.  v.  Martin  which  has  never 
since  been  doubted,  settled  that  he  could  not,  as  during  that 
period  he  was  exejnpt  from  the  jurisdiction  of  the  Courts  of 
this  country."  And  later  he  said:  "The  writs  and  processes 
mentioned  in  the  Act  are  not  confined  to  such  as  directly  touch 
the  person  or  goods  of  an  ambassador,  but  extend  to  such  as  in 
their  usual  consequences  would  have  this  effect  as  was  held  in 
the  Magdalena  Steam  Navigation  Co.  Case  above  cited."  He 
then  read  the  passage  from  Lord  Campbell's  judgment  as  to 
17  forfeiture  or  waiver  to  which  I  have  already  referred.  Again, 


226  EXEMPTIONS  FROM  JURISDICTION. 

in  dissenting  from  the  contention  that  to  issue  a  writ  without 
serving  it  would  have  been  no  breach  of  the  ambassador's  priv- 
ilege, and  that  therefore  a  writ  might  have  been  issued  for  the 
purpose  of  saving  the  statute,  and  have  been  renewed  from  time 
to  time,  Davey  L.  J.  said:  "It  is  in  my  opinion  sufficient  to 
refer  to  the  3rd  section  of  7  Anne,  c.  12,  which  makes  all  writs 
and  processes,  whereby  the  person  of  any  ambassador  or  other 
public  minister  may  be  arrested  or  imprisoned,  or  his  goods  and 
chattels  may  be  distrained,  seized,  or  attached,  utterly  null  apd 
void.  It  has  been  decided  in  Magdalena  Steam  Navigation  Co. 
v.  Martin,  2  E.  &  E.  94,  that  this  section  applies  not  only  to 
writs  of  execution  against  the  property  or  person  of  a  privileged 
person,  but  also  to  writs  which  lead  up  to  and  would  in  ordinary 
course  have  the  consequence  of  attaching  his  goods  or  person. 
If  so,  I  am  of  opinion  that  a  writ  of  summons  in  an  action  is 
of  that  character,  and  that  the  effect  of  the  statute  (which  is 
said  to  be  declaratory  only  of  the  common  law)  is  to  make  such 
a  writ  void  and  of  no  effect.  Mr.  Pollard  is  quite  right  in  say- 
ing that  the  writ  had  been  served  in  the  Magdalena  Case  and 
that  all  that  it  was  necessary  to  decide  was  that  the  service  was 
bad.  But  the  grounds  upon  which  the  decision  was  based  in 
Lord  Campbell's  judgment  go  beyond  that  point,  and  in  my 
opinion  shew  a  total  want  of  jurisdiction  of  the  Court  to  enter- 
tain the  action  at  all."  After  referring  to  passages  in  that 
judgment  Davey  L.  J.  proceeds,  [1894]  2  Q.  B.  361:  "These 
passages,  in  my  opinion,  correctly  state  the  legal  principles  on 
which  the  exemption  is  founded,  and  are  in  accordance  with  the 
course  of  decisions  in  our  Courts:  see,  for  example,  the  latest 
case  of  The  Parlement  Beige  (1880),  5  P.  D.  197,  in  the  Court 
of  Appeal,  in  which  it  was  said  (I  am  reading  from  the  marginal 
note,  which  is  fully  borne  out  by  the  judgment)  that  as  a  conse- 
quence of  the  absolute  independence  of  every  sovereign  au- 
thority and  of  the  international  comity  which  induces  every 
sovereign  State  to  respect  the  independence  of  every  other  sov- 
ereign State,  each  State  declines  to  exercise  by  means  of  any  of 
its  Courts  any  of  its  territorial  jurisdiction  over  the  person  of 
any  Sovereign  or  ambassador,  or  over  the  public  property  of  any 
State  which  is  destined  to  its  public  use,  or  over  the  property 
of  any  ambassador,  though  such  Sovereign,  ambassador,  or  prop- 
erty be  within  its  territory.  I  am  unable  to  think  that  the  issue 
of  a  writ  in  an  action  which  action  the  Court  has  no  jurisdiction 
to  entertain,  and  which  writ,  therefore,  the  Court  has  no  juris- 


IN  RE  BOLIVIA  EXPLORATION  SYNDICATE.     227 

diction  to  issue,  can  prevent  the  statute  running.  ...  I  am 
therefore  of  opinion  that  Gadban  and  Watson,  or  Gadban  or  his 
executors,  could  not  have  properly  issued  a  writ  against 
Musurus  Pacha  or  (in  other  words)  had  no  right  of  action 
against  him  while  he  was  ambassador.  The  doubts  suggested 
in  Taylor  v.  Best  cannot  in  my  opinion  be  supported."  He  is 
referring  to  the  doubts  on  the  question  of  absolute  privilege. 

In  the  course  of  his  able  argument  Mr.  Clauson '  referred  to 
Mighell  v.  Sultan  of  Johore,  [1894]  1  Q.  B.  149,  159.  .  .  . 

There  is  one  other  dictum  to  which  I  must  refer.  In  Fisher 
v.  Begrez,  2  Cr.  &  M.  240,  242,  243,  an  ambassador 's  servant  was 
arrested  for  debt.  He  paid  the  money  immediately  upon  his 
arrest  without  protest;  and  upon  being  asked  by  the  sheriff's 
officer  whether  he  intended  to  make  any  application,  he  said  he 
did  not,  and  the  sheriff  in  due  course  paid  over  the  money. 
Five  months  later  the  defendant  obtained  a  rule  calling  on  the 
plaintiff  and  the  sheriff  to  shew  cause  why  the  ca.  sa.  should  not 
be  set  aside  and  the  money  returned.  The  ambassador  refused 
to  interfere.  In  the  course  of  the  argument  Lord  Lyndhurst 
C.  B.  said:  "A  party  may  waive  his  privilege,  and  if  he  pays 
the  money  without  insisting  on  his  privilege,  does  he  not  thereby 
waive  it?  Besides,  it  is  sworn  that  he  expressly  said,  he  should 
not  make  any  application."  This  was  properly  relied  on  as  a 
dictum  in  favour  of  the  possibility  of  waiver.  In  his  judgment 
Bayley  B.  said:  "The  privilege  is  not  the  privilege  of  the 
servant,  but  of  the  ambassador.  This  application  is  not  made 
on  behalf  of  the  ambassador,  or  of  any  one  connected  with  him ; 
but  on  behalf  of  the  defendant  alone."  In  that  case  it  is  to  be 
observed  that  the  servant  said  he  should  not  claim  privilege, 
and  the  ambassador  refused  to  claim  it  on  his  behalf.  In  other 
words  he  refused  to  acknowledge  the  servant  as  within  the  priv- 
ilege. The  decision  does  not  touch  the  question  of  waiver  by  a 
privileged  person. 

It  seems  to  me  that  both  at  common  law  and  under  the  statute 
all  writs  against  foreign  public  ministers  accredited  to  the  Court 
of  this  country  are  absolutely  null  and  void,  and  that  if  and  so 
far  as  waiver  of  that  diplomatic  privilege  is  possible  it  must  be 
confined  to  cases  of  some  very  special  nature  as  was  the  case  in 
Taylor  v.  Best,  14  C.  B.  487.  The  question  is  whether  R.  E. 
Lembcke's  conduct  brings  him  within  that  decision.  I  have  felt 
considerable  difficulty  as  to  this.  No  doubt  he  entered  an  un- 
conditional appearance,  asked  for  further  time  to  file  evidence, 


228  EXEMPTIONS  FROM  JURISDICTION. 

and  filed  evidence  on  the  merits  stating  his  official  position,  but 
not  raising  any  question  of  privilege.  Has  he  thereby  waived 
his  privilege?  It  seems  to  me  that  on  this  question  there  are 
three  matters  to  be  considered.  In  the  first  place,  having  re- 
gard to  the  earlier  cases  as  to  the  absolute  nullity  of  proceed- 
ings against  foreign  public  ministers  I  am  satisfied  that  waiver, 
if  it  be  possible,  must  be  strictly  proved.  It  implies  a  knowl- 
edge of  the  rights  waived,  and  I  am  not  satisfied  that  R.  E. 
Lembcke  when  he  entered  appearance  and  took  the  subsequent 
steps  was  aware  of  his  privilege.  Secondly,  knowledge  of  our 
common  and  statute  law  cannot  be  imputed  to  a  foreign  subject 
residing  here  as  diplomatic  agent  of  a  foreign  State.  Thirdly, 
I  am  far  from  satisfied  that  a  subordinate  secretary  can  effect- 
ually waive  his  privilege  without  the  sanction  of  his  Sovereign 
or  Legation,  and  it  is  clear  that,  whatever  knowledge  R.  E. 
Lembcke  possessed,  the  objection  on  the  ground  of  privilege  is 
now  taken  with  the  sanction  and  at  the  instigation  of  the  Peru- 
vian Legation. 

To  some  extent  my  view  is  supported  by  The  Jassy,  [1906] 
P.  270,  273,  which  was  a  motion  to  dismiss  an  action  for  dam- 
age by  collision  on  the  ground  that  the  vessel  proceeded  against 
was  the  property  of  a  foreign  sovereign  State  and  destined  to 
its  public  use.  On  March  6,  1906,  the  plaintiffs  issued  a  sum- 
mons in  rem  addressed  to  the  owners  of  the  Jassy,  and  on  March 
18  the  Jassy  was  arrested  at  Liverpool,  but  released  on  an 
undertaking  to  put  in  bail  given  by  solicitors  acting  for  the 
owners'  agents.  On  March  22  appearance  for  the  owners  was 
entered,  and  on  April  12  the  owners  raised  the  question  of  priv- 
ilege. Gorell  Barnes  P.  said :  ' '  The  result  is  that  the  principle 
laid  down  in  The  Parlement  Beige,  5  P.  D.  197,  applies,  in  spite 
of  the  undertaking  to  put  in  bail  and  appearance  entered  by 
some  agent  in  Liverpool  without  the  knowledge  of  the  Rouman- 
ian Government  and  under  a  misapprehension  as  to  the  privilege 
enjoyed  by  a  sovereign  State  in  respect  of  the  immunity  of  its 
public  vessels  from  arrest.  The  action  will  be  dismissed  with 
costs. ' ' 

There  is  one  other  matter  to  be  considered.  Whatever  be  the 
true  view  of  R.  E.  Lembcke 's  conduct  in  entering  appearance 
and  taking  the  subsequent  steps,  it  is  clear  that  the  summons 
must  prove  abortive  against  him.  No  judgment  or 'execution 
can  be  enforced  or  levied  against  him,  and  the  authorities  shew 


NOTE.  229 

the  impropriety  of  allowing  the  action  to  go  on  merely  for  the 
purpose  of  defining  his  liability. 

On  the  grounds  above  stated  I  am  of  opinion  that  there  has 
been  no  effective  waiver  established  in  this  case  and  that  the  plea 
of  privilege  must  prevail  with  costs  since  June  10,  1913,  when 
the  objection  was  first  taken. 

NOTE. — The  immunities  of  diplomatic  agents  are  based  upon  inter- 
national law,  Heathfield  v.  Chilton  (1767),  4  Burrow,  2015,  but  muni- 
cipal legislation  may  be  enacted  for  their  better  protection.  In  Lord 
Coke's  time  it  seems  to  have  been  thought  that  an  ambassador  might 
be  held  liable  on  his  civil  contracts.  In  1708  Peter  the  Great's  am- 
bassador in  London  was  arrested  in  an  action  for  debt  and  was  com- 
pelled to  give  bail.  The  Czar's  indignation  was  extreme,  and  as  a 
means  of  appeasing  him  and  "as  an  apology  and  humiliation  from 
the  whole  nation,"  the  famous  statute  of  Anne  (7  Anne,  12)  was 
enacted  and  a  finely  illuminated  copy  was  sent  to  the  Czar  by  a  special 
ambassador.  In  Triquet  v.  Bath  (1764),  3  Burrow,  1478,  Lord  Mans- 
field said  that  the  statute  was  merely  declaratory  of  the  law  of 
nations.  "All  that  is  new  in  this  Act,"  he  said,  "is  the  clause  which 
gives  a  summary  jurisdiction  for  the  punishment  of  the  infractors 
of  this  law."  This  statute,  in  substantially  the  same  terms,  was 
adopted  by  the  American  Congress  in  1790  and  is  incorporated  in  the 
Revised  Statutes  in  the  following  form: 

Sec.  4063.  Whenever  any  writ  or  process  is  sued  out  or 
prosecuted  by  any  person  in  any  court  of  the  United  States, 
or  of  a  State,  or  by  any  judge  or  justice,  whereby  the  person 
of  any  public  minister  of  any  foreign  prince  or  state,  author- 
ized and  received  as  such  by  the  President,  or  any  domestic 
or  domestic  servant  of  any  such  minister,  is  arrested  or  im- 
prisoned, or  his  goods  or  chattels  are  distrained,  seized, 
or  attached,  such  writ  or  process  shall  be  deemed  void. 

Sec.  4064.  Whenever  any  writ  or  process  is  sued  out  in 
violation  of  the  preceding  section,  every  person  by  whom  the 
same  is  obtained  or  prosecuted,  whether  -as  party  or  as 
attorney  or  solicitor,  and  every  officer  concerned  in  executing 
it,  shall  be  deemed  a  violator  of  the  laws  of  nations,  and  a 
disturber  of  the  public  repose,  and  shall  be  imprisoned  for  not 
more  than  three  years,  and  fined  in  the  discretion  of  the 
court. 

Diplomatic  privilege  is  not  a  personal  right  which  the  holder 
for  the  time  being  is  at  liberty  to  waive  as  his  judgment  or  caprice 
may  indicate.  It  is  accorded  to  him  for  the  purpose  of  facilitating  the 
transaction  of  the  business  of  his  government,  and  hence  it  should 
be  waived  only  by  a  representative  of  the  public  authority  who  is 
competent  to  pass  upon  the  public  interests  involved.  Since  an  am- 
bassador's commission  asks  that  full  credit  be  given  him,  a  court 
may  dispense  with  proof  that  in  waiving  his  immunity  he  is  acting 
with  the  consent  of  his  government,  but  it  may  reasonably  require 


230  EXEMPTIONS  FROM  JURISDICTION. 

» 

a  definite  statement  from  him  to  that  effect.  When  the  Venezuelan 
Minister  to  the  United  States  appeared  as  a  witness  at  the  trial  of 
the  assassin  of  President  Garfield  in  1882,  the  court  was  informed 
that  he  appeared  by  instruction  of  his  government,  Moore,  Digest, 
IV,  644.  Subordinate  members  of  a  mission  may  waive  their  im- 
munity only  with  the  consent  of  the  chief  of  mission,  which  should 
be  formally  notified  to  the  court.  If  a  diplomat's  waiver  of  his 
immunity  is  made  for  reasons  which  do  not  commend  themselves  to  his 
colleagues  in  the  diplomatic  corps,  they  may  make  a  protest  to  him, 
since  an  unwarranted  waiver  weakens  the  position  of  all  and  may 
make  it  more  difficult  to  maintain  a  safeguard  which  is  so  important 
in  the  discharge  of  their  functions.  On  the  other  hand,  it  may  be 
advantageous  to  an  ambassador  to  waive  his  immunity  in  order  to 
obtain  a  judicial  determination  of  points  at  issue,  and  his  right 
to  do  so  with  the  consent  of  his  government  is  well  recognized, 
Taylor  v.  Best  (1854),  14  C.  B.  487;  In  re  Suarez  [1917]  2  Ch.  131; 
(1918)  1  Ch.  176.  The  immunity  of  a  diplomat  continues  for  a  suf- 
ficient time  after  the  termination  of  his  appointment  to  give  him 
a  reasonable  opportunity  to  wind  up  his  affairs,  Musurus  Bey  v. 
Gadban,  [1894]  2  Q.  B.  352.  While  a  diplomat  is  not  subject  to  pro- 
cess in  the  country  to  which  he  is  accredited,  that  country  is  not 
helpless  in  the  presence  of  those  who  break  its  laws  or  whose  con- 
duct is  otherwise  offensive.  In  a  proper  case  the  recall  of  such 
offenders  may  be  requested,  and  if  it  is  not  granted  they  may  be  ex- 
pelled. The  latter  however  is  an  extreme  remedy.  A  country  which 
accepts  one  of  its  own  citizens  as  the  diplomatic  representative  of 
another  country  must  accord  to  him  the  usual  immunity  unless,  at 
the  time  of  his  reception,  it  stipulates  that  he  is  to  remain  under 
the  jurisdiction  to  which  he  owes  allegiance,  Macartney  v.  Garbut 
(1890),  24  Q.  B.  D.  368.  In  the  United  States,  diplomatic  status  is 
not  accorded  to  appointees  of  foreign  governments  who  are  American 
citizens. 

As  a  further  concession  to  international  comity  and  in  order  to 
enable  an  ambassador  to  discharge  his  functions  without  interruption 
his  immunity  extends  to  his  family  and  household,  United  States  v. 
Liddle  (1808),  2  Washington  C.  C.  205;  Republica  v.  DeLongchamps 
(1784),  1  Dallas  (Pa.),  Ill,  and  to  his  official  residence,  United 
States  v.  Hand  (1810),  Federal  Cases,  No.  15297.  But  this  does  not 
prevent  the  territorial  authority  from  taking  jurisdiction  over  acts 
committed  in  an  embassy  or  legation  by  a  person  not  possessing 
diplomatic  immunity  or  by  one  who  has  waived  his  immunity.  In 
case  of  refusal  to  surrender  such  an  offender,  coercive  measures 
might  be  employed,  Hyde,  I,  760;  Moore,  Digest,  IV,  555.  The  grant- 
ing of  asylum,  except  in  very  exceptional  cases,  is  now  generally 
condemned.  See  J.  B.  Moore,  "Asylum  in  Legations  and  Consulates 
and  in  Vessels,"  Pol.  Sci.  Quar.,  VII,  1,  197,  397;  Hyde,  I,  760;  Moore, 
Digest,  II,  755.  As  to  the  immunity  of  a  diplomatic  agent  in  a  coun- 
try to  which  he  is  not  accredited,  see  New  Chile  Gold  Mining  Co.  v. 
Blanco  (1888),  4  T.  L.  R.  346;  Wilson  v.  Blanco  (1889),  56  N.  Y. 
Super.  Ct.  582.  As  to  the  position  of  a  belligerent's  ambassador  to  a 
aeutral  state,  see  The  Caroline  (1807),  6  C.  Robinson,  461,  467. 


NOTE.  231 

Consuls  do  not  possess  diplomatic  status  and  are  not  accorded 
diplomatic  immunity,  In  re  Baiz,  (1890),  135  U.  S.  403.  They  are 
therefore  not  exempt  from  civil  and  criminal  process  in  the  state 
where  they  reside,  Viveash  v.  Becker  (1814),  3  M.  &  S.  284;  Rex 
v.  Ahlers  (1914),  L.  R.  [1915]  1KB.  616;  United  States  v.  Ravara 
(1793),  2  Dallas,  287;  The  Anne  (1818),  3  Wheaton,  435;  Coppell 
v.  Hall  (1869),  7  Wallace,  542;  but  although -a  consul  is  subject  to 
indictment  and  arrest  the  documents  in  the  consular  archives  are 
privileged  and  a  witness  may  not  be  compelled  to  disclose  their 
contents,  Kessler  v.  Best  (1903),  121  Fed.  439.  Since  he  does  not 
possess  a  diplomatic  character,  a  consul  of  a  neutral  state  residing 
and  doing  business  in  enemy  territory  is  subject  to  the  disabilities  of 
an  enemy,  The  President  (1804),  5  C.  Robinson,  277;  The  Falcon 
(1805),  6  C.  Robinson,  194;  Albrecht  v.  Sussman  (1813),  2  V.  &  B.  323. 

The  distinction  between  diplomats  and  consuls  has  not  always 
been  sharply  drawn.  This  is  shown  in  the  provision  in  the  Consti- 
tution of  the  United  States  by  which  the  Supreme  Court  is  given 
original  jurisdiction  "in  all  cases  affecting  ambassadors,  other  pub- 
lic ministers  and  consuls,"  in  the  act  of  Congress  by  which  the  Fed- 
eral courts  are  given  exclusive  jurisdiction  in  civil  or  criminal  pro- 
ceedings against  ministers  or  consuls,  and  in  the  many  treaties  in 
which  provision  is  made  for  special  immunities  for  consuls,  which 
however  are  often  restricted  to  consuls  who  are  citizens  of  the 
countries  for  which  they  act,  Bors  v.  Preston  (1884),  111  U.  S.  252. 
Since  a  consul's  exemption  from  the  jurisdiction  of  State  courts  is 
conferred  for  the  facilitating  of  the  work  of  his  office,  he  may  not 
waive  it,  Davis  v.  Packard  (1833),  7  Peters,  276,  (1834),  8  Peters, 
312.  It  is  probable  that  the  reasonable  time  allowed  to  a  diplomat 
for  winding  up  his  affairs  and  leaving  the  country  would  not  apply 
to  a  consul's  exemption  from  process  in  State  courts.  In  People  v. 
Savitch  (1921),  190  N.  Y.  Supp.  759,  it  was  held  that  upon  the  revo- 
cation of  a  consul's  exequatur,  he  became  indictable  in  a  State  court 
for  crimes  committed  while  consul. 

For  further  discussion  of  diplomatic  immunity  and  the  status 
of  consuls  see  Hershey,  Diplomatic  Agents  and  Immunities;  van 
Praag,  Juridiction  et  Droit  International  Public,  453-490;  Satow,  A 
Guide  to  Diplomatic  Practice,  I;  Stowell,  Le  Consul  and  Consular 
Cases  and  Opinions;  "The  Immunity  of  Consuls  from  the  Process  of 
State  Courts",  Harvard  Law  Review,  XXXV,  752;  Cobbett,  Cases  and 
Opinions,  I,  305;  Hyde,  I,  746  seq.,  785  seq.;  Bonflls  (Fauchille),  sec. 
684;  Moore,  Digest,  IV,  630;  V.  1. 


232  EXEMPTIONS  FROM  JURISDICTION. 

SECTION  3.    PUBLIC  PROPERTY. 
THE  SCHOONER  EXCHANGE  v.  M'F ADDON  &  OTHERS. 

SUPREME   COUBT   OF  THE  UNITED   STATES.      1812. 

7  Cranch,  116. 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the 
district  of  Pennsylvania. 

[The  schooner  Exchange,  belonging  to  John  M 'Fad don  and 
William  Greetham,  citizens  of  Maryland,  while  on  a  voyage 
from  Baltimore  to  Spain  in  December,  1810,  was  seized  in  pur- 
suance of  the  Rambouillet  Decree  by  officers  of  the  Emperor 
Napoleon,  taken  to  France,  converted  into  a  public  vessel,  and 
given  the  name  Balaou.  The  vessel  having  put  into  Philadel- 
phia in  July,  1811,  her  original  owners  filed  a  libel  praying  that 
she  be  attached  and  returned  to  them.  Thereupon  the  United 
States  District  Attorney  suggested  to  the  court  that  the  vessel 
was  a  public  vessel,  the  property  of  a  power  with  which  the 
United  States  was  at  peace,  and  consequently  not  within  the 
jurisdiction  of  the  court.  The  decision  of  the  District  Court 
dismissing  the  libel  having  been  reversed  by  the  Circuit  Court, 
an  appeal  was  taken  to  this  court.] 

MARSHALL,  CH.  J.  delivered  the  opinion  of  the  Court  as  fol- 
lows: 

This  case  involves  the  very  delicate  and  important  inquiry, 
whether  an  American  citizen  can  assert,  in  an  American  court 
a  title  to  an  armed  national  vessel,  found  within  the  waters  of 
the  United  States. 

The  question  has  been  considered  with  an  earnest  solicitude, 
that  the  decision  may  conform  to  those  principles  of  national 
and  municipal  law  by  which  it  ought  to  be  regulated. 

In  exploring  an  unbeaten  path,  with  few,  if  any  aids,  from 
precedents  or  written  law,  the  court  has  found  it  necessary  to 
rely  much  on  general  principles,  and  on  a  train  of  reasoning, 
founded  on  cases  in  some  degree  analogous  to  this. 

The  jurisdiction  of  courts  is  a  branch  of  that  which  is  pos- 
sessed by  the  nation  as  an  independent  sovereign  power. 

The  jurisdiction  of  the  nation  within  its  own  territory  is 
necessarily  exclusive  and  absolute.  It  is  susceptible  of  no  limita- 


THE  SCHOONER  EXCHANGE  v.  M'FADDON     233 

tion  not  imposed  by  itself.  Any  restriction  upon  it,  deriving 
validity  from  an  external  source,  would  imply  a  diminution  of 
its  own  sovereignty  to  the  extent  of  the  restriction,  and  an  in- 
vestment of  that  sovereignty  to  the  same  extent  in  that  power 
which  could  impose  such  restrictions. 

All  exceptions,  therefore,  to  the  full  and  complete  power  of 
a  nation  within  its  own  territories,  must  be  traced  up  to  the 
consent  of  the  nation  itself.  They  can  flow  from  no  other 
legitimate  source. 

This  consent  may  be  either  expressed  or  implied.  In  the 
latter  case,  it  is  less  determinate,  exposed  more  to  the  uncer- 
tainties of  construction;  but,  if  understood,  not  less  obligatory. 

The  world  being  composed  of  distinct  sovereignties,  possess- 
ing equal  rights  and  equal  independence,  whose  mutual  benefit 
is  promoted  by  intercourse  with  each  other,  and  by  an  inter- 
change of  those  good  offices  which  humanity  dictates  and  its 
wants  require,  all  sovereigns  have  consented  to  a  relaxation  in 
practice,  in  cases  under  certain  peculiar  circumstances,  of  that 
absolute  and  complete  jurisdiction  within  their  respective  ter- 
ritories which  sovereignty  confers. 

This  consent  may,  in  some  instances,  be  tested  by  common 
usage,  and  by  common  opinion,  growing  out  of  that  usage. 

A  nation  would  justly  be  considered  as  violating  its  faith, 
although  that  faith  might  not  be  expressly  plighted,  which 
should  suddenly  and  without  previous  notice,  exercise  its  ter- 
ritorial powers  in  a  manner  not  consonant  to  the  usages  and 
received  obligations  of  the  civilized  world. 

This  full  and  absolute  territorial  jurisdiction  being  alike  the 
attribute  of  every  sovereign,  and  being  incapable  of  conferring 
extra-territorial  power,  would  not  seem  to  contemplate  foreign 
sovereigns  nor  their  sovereign  rights  as  its  objects.  One  sover- 
eign being  in  no  respect  amenable  to  another;  and  being  bound 
by  obligations  of  the  highest  character  not  to  degrade  the  dig- 
nity of  his  nation,  by  placing  himself  or  its  sovereign  rights 
within  the  jurisdiction  of  another,  can  be  supposed  to  enter  a 
foreign  territory  only  under  an  express  license,  or  in  the  con- 
fidence that  the  immunities  belonging  to  his  independent  sov- 
ereign station,  will  be  extended  to  him. 

This  perfect  equality  and  absolute  independence  of  sovereigns, 
and  this  common  interest  impelling  them  to  mutual  intercourse, 
and  an  interchange  of  good  offices  with  each  other,  have  given 
rise  to  a  class  of  cases  in  which  every  sovereign  is  understood 


234  EXEMPTIONS  FROM  JURISDICTION. 

to  waive  the  exercise  of  a  part  of  that  complete  exclusive  terri- 
torial jurisdiction,  which  has  been  stated  to  be  the  attribute  of 
every  nation. 

1st.  One  of  these  is  admitted  to  be  the  exemption  of  the  per- 
son of  the  sovereign  from  arrest  or  detention  within  a  foreign 
territory. 

If  he  enters  that  territory  with  the  knowledge  and  license  of 
its  sovereign,  that  license,  although  containing  no  stipulation 
exempting  his  person  from  arrest,  is  universally  understood  to 
imply  such  stipulation. 

Why  has  the  whole  civilized  world  concurred  in  this  construc- 
tion? The  answer  cannot  be  mistaken.  A  foreign  sovereign  is 
not  understood  as  intending  to  subject  himself  to  a  jurisdiction 
incompatible  with  his  dignity,  and  the  dignity  of  his  nation, 
and  it  is  to  avoid  this  subjection  that  the  license  has  been  ob- 
tained. The  character  to  whom  it  is  given,  and  the  object  for 
which  it  is  granted,  equally  require  that  it  should  be  construed 
to  impart  full  security  to  the  person  who  has  obtained  it.  This 
security,  however,  need  not  be  expressed;  it  is  implied  from 
the  circumstances  of  the  case. 

Should  one  sovereign  enter  the  territory  of  another,  without 
the  consent  of  that  other,  expressed  or  implied,  it  would  pre- 
sent a  question  which  does  not  appear  to  be  perfectly  settled,  a 
decision  of  which  is  not  necessary  to  any  conclusion  to  which 
the  Court  may  come  in  the  cause  under  consideration.  If  he 
did  not  thereby  expose  himself  to  the  territorial  jurisdiction  of 
the  sovereign,  whose  dominions  he  had  entered,  it  would  seem 
to  be  because  all  sovereigns  impliedly  engage  not  to  avail  them- 
selves of  a  power  over  their  equal,  which  a  romantic  confidence 
in  their  magnanimity  has  placed  in  their  hands. 

2d.  A  second  case,  standing  on  the  same  principles  with  the 
first,  is  the  immunity  which  all  civilized  nations  allow  to  foreign 
ministers. 

Whatever  may  be  the  principle  on  which  this  immunity  is 
established,  whether  we  consider  him  as  in  the  place  of  the  sov- 
ereign he  represents,  or  by  a  political  fiction  suppose  him  to  be 
extra-territorial,  and,  therefore,  in  point  of  law,  not  within  the 
jurisdiction  of  the  sovereign  at  whose  Court  he  resides ;  still 
the  immunity  itself  is  granted  by  the  governing  power  of  the 
nation  to  which  the  minister  is  deputed.  This  fiction  of  exter- 
ritoriality could  not  be  erected  and  supported  against  the  will 
of  the  sovereign  of  the  territory.  He  is  supposed  to  assent  to  it. 


THE  SCHOONER  EXCHANGE  v.  M'FADDON     235 

This  consent  is  not  expressed.  It  is  true  that  in  some  coun- 
tries, and  in  this  among  others  a  special  law  is  enacted  for  the 
case.  But  the  law  obviously  proceeds  on  the  idea  of  prescribing 
the  punishment  of  an  act  previously  unlawful,  not  of  grant- 
ing to  a  foreign  minister  a  privilege  which  he  would  not  other- 
wise possess. 

The  assent  of  the  sovereign  to  the  very  important  and  exten- 
sive exemptions  from  territorial  jurisdiction  which  are  admitted 
to  attach  to  foreign  ministers,  is  implied  from  the  considerations 
that,  without  such  exemption,  every  sovereign  would  hazard  his 
own  dignity  by  employing  a  public  minister  abroad.  His  min- 
ister would  owe  temporary  and  local  allegiance  to  a  foreign 
prince,  and  would  be  less  competent  to  the  objects  of  his  mission. 
A  sovereign  committing  the  interests  of  his  nation  with  a  for- 
eign power,  to  the  care  of  a  person  whom  he  has  selected  for 
that  purpose,  cannot  intend  to  subject  his  minister  in  any  de- 
gree to  that  power;  and,  therefore,  a  consent  to  receive  him, 
implies  a  consent  that  he  shall  possess  those  privileges  which 
his  principal  intended  he  should  retain — privileges  which  are 
essential  to  the  dignity  of  his  sovereign,  and  to  the  duties  he  is 
bound  to  perform. 

In  what  cases  a  minister,  by  infracting  the  laws  of  the  country 
in  which  he  resides,  may  subject  himself  to  other  punishment 
than  will  be  inflicted  by  his  own  sovereign,  is  an  inquiry  foreign 
to  the  present  purpose.  If  his  crimes  be  such  as  to  render  him 
amenable  to  the  local  jurisdiction,  it  must  be  because  they  for- 
feit the  privileges  annexed  to  his  character;  and  the  mfnister, 
by  violating  the  conditions  under  which  he  was  received  as  the 
representative  of  a  foreign  sovereign,  has  surrendered  the  im- 
munities granted  on  those  conditions;  or,  according  to  the  true 
meaning  of  the  original  assent,  has  ceased  to  be  entitled  to  them. 

3d.  A  third  case  in  which  a  sovereign  is  understood  to  cede 
a  portion  of  his  territorial  jurisdiction  is,  where  he  allows  the 
troops  of  a  foreign  prince  to  pass  through  his  dominions. 

In  such  case,  without  any  express  declaration  waiving  juris- 
diction over  the  army  to  which  this  right  of  passage  has  been 
granted,  the  sovereign  who  should  attempt  to  exercise  it  would 
certainly  be  considered  as  violating  his  faith.  By  exercising  it, 
the  purpose  for  which  the  free  passage  was  granted  would  be 
defeated,  and  a  portion  of  the  military  force  of  a  foreign  inde- 
pendent nation  would  be  diverted  from  those  national  objects 
and  duties  to  which  it  was  applicable,  and  would  be  withdrawn 


236  EXEMPTIONS  FROM  JURISDICTION. 

from  the  control  of  the  sovereign  whose  power  and  whose  safety 
might  greatly  depend  on  retaining  the  exclusive  'command  and 
disposition  of  this  force.  The  grant  of  a  free  passage,  there- 
fore, implies  a  waiver  of  all  jurisdiction  over  the  troops  during 
their  passage,  and  permits  the  foreign  general  to  use  that  dis- 
cipline, and  to  inflict  those  punishments  which  the  government 
of  his  army  may  require. 

But  if,  without  such  express  permit,  an  army  should  be  led 
through  the  territories  of  a  foreign  prince,  might  the  jurisdic- 
tion of  the  territory  be  rightfully  exercised  over  the  individuals 
composing  this  army? 

Without  doubt,  a  military  force  can  never  gain  immunities  of 
any  other  description  than  those  which  war  gives,  by  entering 
a  foreign  territory  against  the  will  of  its  sovereign.  But  if  his 
consent,  instead  of  being  expressed  by  a  particular  license,  be 
expressed  by  a  general  declaration  that  foreign  troops  may  pass 
through  a  specified  tract  of  country,  a  distinction  between  such 
general  permit  and  a  particular  license  is  not  perceived.  It 
would  seem  reasonable  that  every  immunity  which  would  be 
conferred  by  a  special  license,  would  be  in  like  manner  con- 
ferred by  such  general  permit. 

We  have  seen  that  a  license  to  pass  through  a  territory  im- 
plies immunities  not  expressed,  and  it  is  material  to  inquire  why 
the  license  itself  may  not  be  presumed  ? 

It  is  obvious  that  the  passage  of  an  army  through  a  foreign 
territory  will  probably  be  at  all  times  inconvenient  and  in- 
jurious, and  would  often  be  imminently  dangerous  to  the  sover- 
eign through  whose  dominion  it  passed.  Such  a  practice  would 
break  down  some  of  the  most  decisive  distinctions  between  peace 
and  war,  and  would  reduce  a  nation  to  the  necessity  of  resisting 
by  war  an  act  not  absolutely  hostile  in  its  character,  or  of  ex- 
posing itself  to  the  stratagems  and  frauds  of  a  power  whose 
integrity  might  be  doubted,  and  who  might  enter  the  country 
under  deceitful  pretexts.  It  is  for  reasons  like  these  that  the 
general  license  to  foreigners  to  enter  the  dominions  of  a  friendly 
power,  is  never  understood  to  extend  to  a  military  force;  and 
an  army  marching  into  the  dominions  of  another  sovereign,  may 
justly  be  considered  as  committing  an  act  of  hostility;  and,  if 
not  opposed  by  force,  acquires  no  privileges  by  its  irregular 
conduct.  It  may  however  well  be  questioned  whether  any  other 
than  the  sovereign  power  of  the  state  be  capable  of  deciding  that 
such  military  commander  is  without  a  license. 


THE  SCHOONER  EXCHANGE  v.  M'F ADDON     237 

But  the  rule  which  is  applicable  to  armies,  does  not  appear  to 
be  equally  applicable  to  ships  of  war  entering  the  ports  of  a 
friendly  power.  The  injury  inseparable  from  the  march  of  an 
army  through  an  inhabited  country,  and  the  dangers  often,  in- 
deed generally,  attending  it,  do  not  ensue  from  admitting  a  ship 
of  war,  without  a  special  license,  into  a  friendly  port.  A  differ- 
ent rule  therefore  with  respect  to  this  species  of  military  force 
has  been  generally  adopted.  If,  for  reasons  of  state,  the  ports 
of  a  nation  generally,  or  any  particular  ports  be  closed  against 
vessels  of  war  generally,, or  the  vessels  of  any  particular  nation, 
notice  is  usually  given  of  such  determination.  If  there  be  no 
prohibition,  the  ports  of  a  friendly  nation  are  considered  as 
open  to  the  public  ships  of  all  powers  with  whom  it  is  at  peace, 
and  they  are  supposed  to  enter  such  ports  and  to  remain  in  them 
while  allowed  to  remain,  under  the  protection  of  the  government 
of  the  place. 

In  almost  every  instance,  the  treaties  between  civilized  nations 
contain  a  stipulation  to  this  effect  in  favor  of  vessels  driven  in 
by  stress  of  weather  or  other  urgent  necessity.  In  such  cases  the 
sovereign  is  bound  by  compact  to  authorize  foreign  vessels  to  en- 
ter his  ports.  The  treaty  binds  him  to  allow  vessels  in  distress  to 
find  refuge  and  asylum  in  his  ports,  and  this  is  a  license  which 
he  is  not  at  liberty  to  retract.  It  would  be  difficult  to  assign  a 
reason  for  withholding  from  a  license  thus  granted,  any  im- 
munity from  local  jurisdiction  which  would  be  implied  in  a 
special  license. 

If  there  be  no  treaty  applicable  to  the  case,  and  the  sovereign, 
from  motives  deemed  adequate  by  himself,  permits  his  ports  to 
remain  open  to  the  public  ships  of  foreign  friendly  powers,  the 
conclusion  seems  irresistible,  that  they  enter  by  his  assent.  And 
if  they  enter  by  his  assent  necessarily  implied,  no  just  reason 
is  perceived  by  the  Court  for  distinguishing  their  case  from  that 
of  vessels  which  enter  by  express  assent. 

In  all  cases  of  exemption  which  have  been  reviewed,  much 
has  been  implied,  but  the  obligation  of  what  was  implied  has 
been  found  equal  to  the  obligation  of  that  which  was  expressed. 
Are  there  reasons  for  denying  the  application  of  this  principle 
to  ships  of  war  ? 

In  this  part  of  the  subject  a  difficulty  is  to  be  encountered,  the 
seriousness  of  which  is  acknowledged,  but  which  the  Court  will 
not  attempt  to  evade. 

Those  treaties  which  provide  for  the  admission  and  safe  de- 


238  EXEMPTIONS  FROM  JURISDICTION. 

parture  of  public  vessels  entering  a  port  from  stress  of  weather, 
or  other  urgent  cause,  provide  in  like  manner  for  the  private 
vessels  of  the  nation;  and  where  public  vessels  enter  a  port 
under  the  general  license  which  is  implied  merely  from  the 
absence  of  a  prohibition,  they  are,  it  may  be  urged,  in  the  same 
condition  with  merchant  vessels  entering  the  same  port  for  the 
purposes  of  trade  who  cannot  thereby  claim  any  exemption  from 
the  jurisdiction  of  the  country.  It  may  be  contended,  certainly 
with  much  plausibility  if  not  correctness,  that  the  same  rule  and 
same  principle  are  applicable  to  public  and  private  ships;  and 
since  it  is  admitted  that  private  ships  entering  without  special 
license  become  subject  to  the  local  jurisdiction,  it  is  demanded 
on  what  authority  an  exception  is  made  in  favor  of  ships  of  war. 

It  is  by  no  means  conceded,  that  a  private  vessel  really  avail- 
ing herself  of  an  asylum  provided  by  treaty,  and  not  attempting 
to  trade,  would  become  amenable  to  the  local  jurisdiction,  unless 
she  committed  some  act  forfeiting  the  protection  she  claims  un- 
der compact.  On  the  contrary,  motives  may  be  assigned  for 
stipulating,  and  according  immunities  to  vessels  in  cases  of  dis- 
tress, which  would  not  be  demanded  for,  or  allowed  to  those 
which  enter  voluntarily  and  for  ordinary  purposes.  On  this 
part  of  the  subject,  however,  the  Court  does  not  mean  to  indicate 
any  opinion.  The  case  itself  may  possibly  occur,  and  ought 
not  to  be  pre- judged. 

Without  deciding  how  far  such  stipulations  in  favor  of  dis- 
tressed vessels,  as  are  usual  in  treaties,  may  exempt  private 
ships  from  the  jurisdiction  of  the  place,  it  may  safely  be  as- 
serted, that  the  whole  reasoning  upon  which  such  exemption 
has  been  implied  in  other  cases,  applies  with  full  force  to  the 
exemption  of  ships  of  war  in  this. 

"It  is  impossible  to  conceive,"  says  Vattel,  "that  a  Prince 
who  sends  an  ambassador  or  any  other  minister  can  have  any 
intention  of  subjecting  him  to  the  authority  of  a  foreign  power ; 
and  this  consideration  furnishes  an  additional  argument,  which 
completely  establishes  the  independency  of  a  public  minister. 
If  it  cannot  be  reasonably  presumed  that  his  sovereign  means  to 
subject  him  to  the  authority  of  the  prince  to  whom  he  is  sent, 
the  latter,  in  receiving  the  minister,  consents  to  admit  him  on 
the  footing  of  independency;  and  thus  there  exists  between  the 
two  princes  a  tacit  convention,  which  gives  a  new  force  to  the 
natural  obligation." 

Equally  impossible  is  it  to  conceive,  whatever  may  be  the  con- 


THE   SCHOONER  EXCHANGE  v.  M'FADDON     239 

struction  as  to  private  ships,  that  a  prince  who  stipulates  a  pas- 
sage for  his  troops,  or  an  asylum  for  his  ships  of  war  in  distress, 
should  mean  to  subject  his  army  or  his  navy  to  the  jurisdiction 
of  a  foreign  sovereign.  And  if  this  cannot  be  presumed,  the 
sovereign  of  the  port  must  be  considered  as  having  conceded  the 
privilege  to  the  extent  in  which  it  must  have  been  understood 
to  be  asked. 

To  the  Court,  it  appears,  that  where,  without  treaty,  the  ports 
of  a  nation  are  open  to  the  private  and  public  ships  of  a  friendly 
power,  whose  subjects  have  also  liberty  without  special  license, 
to  enter  the  country  for  business  or  amusement,  a  clear  distinc- 
tion is  to  be  drawn  between  the  rights  accorded  to  private  in- 
dividuals or  private  trading  vessels,  and  those  accorded  to  public 
armed  ships  which  constitute  a  part  of  the  military  force  of  the 
nation. 

The  preceding  reasoning,  has  maintained  the  propositions  that 
all  exemptions  from  territorial  jurisdiction,  must  be  derived 
from  the  consent  of  the  sovereign  of  the  territory ;  that  this  con- 
sent may  be  implied  or  expressed;  and  that  when  implied,  its 
extent  must  be  regulated  by  the  nature  of  the  case,  and  the 
views  under  which  the  parties  requiring  and  conceding  it  must 
be  supposed  to  act. 

When  private  individuals  of  one  nation  spread  themselves 
through  another  as  business  or  caprice  may  direct,  mingling  in- 
discriminately with  the  inhabitants  of  that  other,  or  when  mer- 
chant vessels  enter  for  the  purposes  of  trade,  it  would  be 
obviously  inconvenient  and  dangerous  to  society,  and  would 
subject  the  laws  to  continual  infraction,  and  the  government  to 
degradation,  if  such  individuals  or  merchants  did  not  owe  tem- 
porary and  local  allegiance,  and  were  not  amenable  to  the  juris- 
diction of  the  country.  Nor  can  the  foreign  sovereign  have  any 
motive  for  wishing  such  exemption.  His  subjects  thus  passing 
into  foreign  countries,  are  not  employed  by  him,  nor  are  they 
engaged  in  national  pursuits.  Consequently  there  are  powerful 
motives  for  not  exempting  persons  of  this  description  from  the 
jurisdiction  of  the  country  in  which  they  are  found,  and  no  one 
motive  for  requiring  it.  The  implied  license,  therefore,  under 
which  they  enter  can  never  be  construed  to  grant  such  exemp- 
tion. 

But  in  all  respects  different  is  the  situation  of  a  public  armed 
ship.  She  constitutes  a  part  of  the  military  force  of  her  nation ; 
acts  under  the  immediate  and  direct  command  of  the  sovereign ; 


240  EXEMPTIONS  PROM  JURISDICTION. 

is  employed  by  him  in  national  objects.  He  has  many  and 
powerful  motives  for  preventing  those  objects  from  being  de- 
feated by  the  interference  of  a  foreign  state.  Such  interference 
cannot  take  place  without  affecting  his  power  and  his  dignity. 
The  implied  license  therefore  under  which  such  vessel  enters  a 
friendly  port,  may  reasonably  be  construed,  and  it  seems  to  the 
Court,  ought  to  be  construed,  as  containing  an  exemption  from 
the  jurisdiction  of  the  sovereign,  within  whose  territory  she 
claims  the  rites  of  hospitality. 

Upon  these  principles,  by  the  unanimous  consent  of  nations,  a 
foreigner  is  amenable  to  the  laws  of  the  place;  but  certainly  in 
practice,  nations  have  not  yet  asserted  their  jurisdiction  over 
the  public  armed  ships  of  a  foreign  sovereign  entering  a  port 
open  for  their  reception. 

Bynkershoek,  a  jurist  of  great  reputation,  has  indeed  main- 
tained that  the  property  of  a  foreign  sovereign  is  not  dis- 
tinguishable by  any  legal  exemption  from  the  property  of  an 
ordinary  individual,  and  has  quoted  several  cases  in  which 
courts  have  exercised  jurisdiction  over  causes  in  which  a  foreign 
sovereign  was  made  a  party  defendant. 

Without  indicating  any  opinion  on  this  question,  it  may  safely 
be  affirmed,  that  there  is  a  manifest  distinction  between  the 
private  property  of  the  person  who  happens  to  be  a  prince,  and 
that  military  force  which  supports  the  sovereign  power,  and 
maintains  the  dignity  and  the  independence  of  a  nation.  A 
prince,  by  acquiring  private  property  in  a  foreign  country,  may 
possibly  be  considered  as  subjecting  that  property  to  the  terri- 
torial jurisdiction;  he  may  be  considered  as  so  far  laying  down 
the  prince,  and  assuming  the  character  of  a  private  individual ; 
but  this  he  cannot  be  presumed  to  do  with  respect  to  any  portion 
of  that  armed  force,  which  upholds  his  crown,  and  the  nation  he 
is  intrusted  to  govern. 

The  only  applicable  case  cited  by  Bynkershoek,  is  that  of  the 
Spanish  ships  of  war  seized  in  Flushing  for  a  debt  due  from  the 
king  of  Spain.  In  that  case,  the  states  general  interposed ;  and 
there  is  reason  to  believe,  from  the  manner  in  which  the  trans- 
action is  stated,  that,  either  by  the  interference  of  government, 
or  the  decision  of  the  court,  the  vessels  were  released. 

This  case  of  the  Spanish  vessels  is,  it  is  believed,  the  only  case 
furnished  by  the  history  of  the  world,  of  an  attempt  made  by  an 
individual  to  assert  a  claim  against  a  foreign  prince,'  by  seizing 
th«  armed  vessels  of  the  nation.  That  this  proceeding  was  at 


THE   SCHOONER  EXCHANGE  v.  M'FADDON     241 

once  arrested  by  the  government,  in  a  nation  which  appears  to 
have  asserted  the  power  of  proceeding  in  the  same  manner 
against  the  private  property  of  the  prince,  would  seem  to  fur- 
nish no  feeble  argument  in  support  of  the  universality  of  the 
opinion  in  favor  of  the  exemption  claimed  for  ships  of  war. 
The  distinction  made  in  our  own  laws  between  public  and  pri- 
vate ships  would  appear  to  proceed  from  the  same  opinion. 

It  seems  then  to  the  Court,  to  be  a  principle  of  public  law, 
that  national  ships  of  war,  entering  the  port  of  a  friendly  power 
open  for  their  reception,  are  to  be  considered  as  exempted  by 
the  consent  of  that  power  from  its  jurisdiction. 

Without  doubt,  the  sovereign  of  the  place  is  capable  of  de- 
stroying this  implication.  He  may  claim  and  exercise  jurisdic- 
tion either  by  employing  force,  or  by  subjecting  such  vessels  to 
the  ordinary  tribunals.  But  until  such  power  be  exerted  in  a 
manner  not  to  be  misunderstood,  the  sovereign  cannot  be  con- 
sidered as  having  imparted  to  the  ordinary  tribunals  a  jurisdic- 
tion, which  it  would  be  a  breach  of  faith  to  exercise.  Those 
general  statutory  provisions  therefore  which  are  descriptive  of 
the  ordinary  jurisdiction  of  the  judicial  tribunals,  which  give 
an  individual  whose  property  has  been  wrested  from  him,  a  right 
to  claim  that  property  in  the  courts  of  the  country,  in  which  it 
is  found,  ought  not,  in  the  opinion  of  this  Court,  to  be  so 
construed  as  to  give  them  jurisdiction  in  a  case,  in  which  the 
sovereign  power  has  impliedly  consented  to  waive  its  jurisdic- 
tion. 

The  arguments  in  favor  of  this  opinion  which  have  been  drawn 
from  the  general  inability  of  the  judicial  power  to  enforce  its 
decisions  in  cases  of  this  description,  from  the  consideration, 
that  the  sovereign  power  of  the  nation  is  alone  competent  to 
avenge  wrongs  committed  by  a  sovereign,  that  the  questions  to 
which  such  wrongs  give  birth  are  rather  questions  of  policy  than 
of  law,  that  they  are  for  diplomatic,  rather  than  legal  discussion, 
are  of  great  weight,  and  merit  serious  attention.  But  the  argu- 
ment has  already  been  drawn  to  a  length,  which  forbids  a  par- 
ticular examination  of  these  points. 

The  principles  which  have  been  stated,  will  now  be  applied 
to  the  case  at  bar. 

In  the  present  state  of  the  evidence  and  proceedings,  the  Ex- 
change must  be  considered  as  a  vessel  which  was  the  property 
of  the  Libellants,  whose  claim  is  repelled  by  the  fact,  that  she 
is  now  a  national  armed  vessel,  commissioned  by,  and  in  the 


242  EXEMPTIONS  FROM  JURISDICTION. 

service  of  the  emperor  of  France.  The  evidence  of  this  fact  is 
not  controverted.  But  it  is  contended,  that  it  constitutes  no  bar 
to  an  inquiry  into  the  validity  of  the  title,  by  which  the  emperor 
holds  this  vessel.  Every  person,  it  is  alleged,  who  is  entitled  to 
property  brought  within  the  jurisdiction  of  our  Courts,  has  a 
right  to  assert  his  title  in  those  Courts,  unless  there  be  some  law 
taking  his  case  out  of  the  general  rule.  It  is  therefore  said  to 
be  the  right,  and  if  it  be  the  right,  it  is  the  duty  of  the  Court, 
to  inquire  whether  this  title  has  been  extinguished  by  an  act,  the 
validity  of  which  is  recognized  by  national  or  municipal  law. 

If  the  preceding  reasoning  be  correct,  the  Exchange,  being  a 
public  armed  ship,  in  the  service  of  a  foreign  sovereign,  with 
whom  the  government  of  the  United  States  is  at  peace,  and  hav- 
ing entered  an  American  port  open  for  her  reception,  on  the 
terms  on  which  ships  of  war  are  generally  permitted  to  enter 
the  ports  of  a  friendly  power,  must  be  considered  as  having 
come  into  the  American  territory,  under  an  implied  promise, 
that  while  necessarily  within  it,  and  demeaning  herself  in  a 
friendly  manner,  she  should  be  exempt  from  the  jurisdiction  of 
the  country.  .  .  . 

I  am  directed  to  deliver  it,  as  the  opinion  of  the  Court,  that 
the  sentence  of  the  Circuit  Court,  reversing  the  sentence  of  the 
District  Court,  in  the  case  of  the  Exchange  be  reversed,  and 
that  of  the  District  Court,  dismissing  the  libel,  be  affirmed. 


THE  PARLEMENT  BELGE. 

THE  COURT  OF  APPEAL  OF  ENGLAND.     1880. 
Law  Reports,  5  P.  D.  197 

BRETT,  L.  J.  In  this  case  proceedings  in  rem  on  behalf  of  the 
owners  of  the  Daring  were  instituted  in  the  Admiralty  Division, 
in  accordance  with  the  forms  prescribed  by  the  Judicature  Act, 
against  the  Parlement  Beige,  to  recover  redress  in  respect  of  a 
collision.  A  writ  was  served  in  the  usual  and  prescribed  man- 
ner on  board  the  Parlement  Beige.  No  appearance  was  entered, 
but  the  Attorney-General,  in  answer  to  a  motion  to  direct  that 
judgment  with  costs  should  be  entered  for  the  plaintiffs,  and 
that  a  warrant  should  be  issued  for  the  arrest  of  the  Parlement 
Beige,  filed  an  information  and  protest,  asserting  that  the 


THE  PARLEMENT  BELGE.  243 

Court  had  no  jurisdiction  to  entertain  the  suit.  Upon  the 
hearing  of  the  motion  and  protest  the  learned  judge  of  the 
Admiralty  Division  overruled  the  protest  and  allowed  the  war- 
rant of  arrest  to  issue.  The  Attorney-General  appealed.  The 
protest  alleged  that  the  Parlement  Beige  was  a  mail  packet 
running  between  Ostend  and  Dover,  and  one  of  the  packets 
mentioned  in  Article  6  of  the  Convention  of  the  17th  of  Febru- 
ary, 1876,  made  between  the  sovereigns  of  Great  Britain  and 
Belgium;  that  she  was  and  is  the  property  of  his  Majesty  the 
King  of  the  Belgians,  and  in  his  possession,  control,  and  em- 
ploy as  reigning  sovereign  of  the  state,  and  was  and  is  a  public 
vessel  of  the  sovereign  and  state,  carrying  his  Majesty's  royal 
pennon,  and  was  navigated  and  employed  by  and  in  the  pos- 
session of  such  government,  and  was  officered  by  officers  of  the 
Royal  Belgian  navy,  holding  commissions,  &c.  In  answer  it 
was  averred  on  affidavits,  which  were  not  contradicted,  that  the 
packet  boat,  besides  carrying  letters,  carried  merchandise  and 
passengers  and  their  luggage  for  hire. 

Three  main  questions  were  argued  before  us:  (1.)  Whether, 
irrespective  of  the  express  exemption  contained  in  Article  6  of 
the  Convention,  the  Court  had  jurisdiction  to  seize  the  Belgian 
vessel  in  a  suit  in  rem;  (2.)  whether,  if  the  Court  would  other- 
wise have  such  jurisdiction,  it  was  ousted  by  Article  6  of  the 
Convention;  (3.)  whether  any  exemption  from  the  jurisdiction 
of  the  Court,  which  the  vessel  might  otherwise  have  had,  was 
lost  by  reason  of  her  trading  in  the  carriage  of  goods  and  per- 
sons. In  the  course  of  the  argument  we  desired  that  it  might, 
in  the  first  instance,  be  confined  to  the  first  and  third  questions, 
reserving  any  further  argument  on  the  second  question  to  be 
heard  subsequently,  if  necessary.  We  have  come  to  the  con- 
clusion that  no  such  argument  is  necessary.  We,  therefore,  give 
no  opinion  upon  the  second  question.  We  neither  affirm  nor 
deny  the  propriety  of  the  judgment  of  the  learned  judge  of  the 
Admiralty  Division  on  that  question. 

The  proposition  raised  by  the  first  question  seems  to  be  as 
follows:  Has  the  Admiralty  Division  jurisdiction  in  respect  of 
a  collision  to  proceed  in  rem  against,  and,  in  case  of  non-appear- 
ance or  omission  to  find  bail,  to  seize  and  sell,  a  ship  present  in 
this  country,  which  ship  is  at  the  time  of  the  proceedings  the 
property  of  a  foreign  sovereign,  is  in  his  possession,  control,  and 
employ  as  sovereign  by  means  of  his  commissioned  officers,  and 
is  a  public  vessel  of  his  state,  in  the  sense  of  its  being  used  for 


244  EXEMPTIONS  FROM  JURISDICTION. 

purposes  treated  by  such  sovereign  and  his  advisers  as  public 
national  services,  it  being  admitted  that  such  ship,  though  com- 
missioned, is  not  an  armed  ship  of  war  or  employed  as  a  part 
of  the  military  force  of  his  country?     On  the  one  side  it  is 
urged  that  the  only  ships  exempted  from  the  jurisdiction  are 
armed  ships  of  war,  or  ships  which,  though  not  armed,  are  in 
the  employ  of  the  government  as  part  of  the  military  force  of 
the  state.     On  the  other  side  it  is  contended  that  all  moveable 
property,  which  is  the  public  property  of  a  sovereign  and  nation 
used  for  public  purposes,  is  exempt  from  adverse  interference 
by  any  court  of  judicature.     It  is  admitted  that  neither  the 
sovereign  of  Great  Britain  nor  any  friendly  sovereign  can  be 
adversely  personally  impleaded  in  any  court  of  this  country.    It 
is  admitted  that  no  armed  ship  of  war  of  the  sovereign  of  Great 
Britain  or  of  a  foreign  sovereign  can  be  seized  by  any  process 
whatever,  exercised  for  any  purpose,  of  any  court  of  this  coun- 
try.   But  it  is  said  that  this  vessel,  though  it  is  the  property  of 
a  friendly  sovereign  in  his  public  capacity  and  is  used  for  pur- 
poses treated  by  him  as  public  national  services,  can  be  seized 
and  sold  under  the  process  of  the  Admiralty  Court  of  this  coun- 
try, because  it  will,  if  so  seized  and  sold,  be  so  treated,  not  in 
a  suit  brought  against  the  sovereign  personally,  but  in  a  suit  in 
rem  against  the  vessel  itself.     This  contention  raises  two  ques- 
tions :  first,  supposing  that  an  action  in  rem  is  an  action  against 
the  property  only,  meaning  thereby  that  it  is  not  a  legal  proceed- 
ing at  all  against  the  owner  of  the  property,  yet  can  the  prop- 
erty in  question  be  subject  to  the  jurisdiction  of  the  Court! 
Secondly,  is  it  true  to  say  that  an  action  in  rem  is  only  and 
solely  a  legal  procedure  against  the  property,  or  is  it  not  rather 
a  procedure  indirectly,  if  not  directly,  impleading  the  owner 
of  the  property  to  answer  to  the  judgment  of  the  Court  to 
the  extent  of  his  interest  in  the  property? 

The  first  question  really  raises  this,  whether  every  part  of 
the  public  property  of  every  sovereign  authority  in  use  for 
national  purposes  is  not  as  much  exempt  from  the  jurisdiction 
of  every  Court  as  is  the  person  of  every  sovereign.  Whether 
it  is  so  or  not  depends  upon  whether  all  nations  have  agreed 
that  it  shall  be,  or  in  other  words,  whether  it  is  so  by  the  law 
of  nations.  The  exemption  of  the  person  of  every  sovereign 
from  adverse  suit  is  admitted  to  be  a  part  of  the  law  of  nations. 
An  equal  exemption  from  interference  by  any  process  of  any 
Court  of  some  property  of  every  sovereign  is  admitted  to  be  a 


THE  PARLEMENT  BELGE.  245 

part  of  the  law  of  nations.  The  universal  agreement  which  has 
made  these  propositions  part  of  the  law  of  nations  has  been 
an  implied  agreement.  Whether  the  law  of  nations  exempts 
all  the  public  property  of  a  state  which  is  destined  to  the  use  of 
the  state,  depends  on  whether  the  principle,  on  which  the  agree- 
ment has  been  implied,  is  as  applicable  to  all  that  other  public 
property  of  a  sovereign  or  state  as  to  the  public  property  which 
is  admitted  to  be  exempt.  If  the  principle  be  equally  applicable 
to  all  public  property  used  as  such,  then  the  agreement  to  ex- 
empt ought  to  be  implied  with  regard  to  all  such  public  prop- 
erty. If  the  principle  only  applies  to  the  property  which  ^is 
admitted  to  be  exempt,  then  we  have  no  right  to  extend  the 
exemption. 

The  first  question,  therefore,  is — What  is  the  principle  on 
which  the  exemption  of  the  person  of  sovereigns  and  of  certain 
public  properties  has  been  recognized?  "Our  king,"  says 
Blackstone  (B.  1,  c.  7),  "owes  ho  kind  of  subjection  to  any  other 
potentate  on  earth.  Hence  it  is  that  no  suit  or  action  can  be 
brought  against  the  king,  even  in  civil  matters,  because  no  Court 
can  have  jurisdiction  over  him.  For  all  jurisdiction  implies 
superiority  of  power;  authority  to  try  would  be  vain  and  idle 
without  an  authority  to  redress,  and  the  sentence  of  a  Court 
would  be  contemptible  unless  the  Court  had  power  to  command 
the  execution  of  it,  but  who  shall  command  the  king?"  In  this 
passage,  which  has  been  often  cited  and  relied  on,  the  reason 
of  the  exemption  is  the  character  of  the  sovereign  authority, 
its  high  dignity,  whereby  it  is  not  subject  to  any  superior  au- 
thority of  any  kind.  "The  world,"  says -Wheaton,  adopting 
the  words  of  the  judgment  in  the  case  of  The  Exchange,  7 
Cranch,  116,  "being  composed  of  distinct  sovereignties,  possess- 
ing equal  rights  and  equal  independence,  all  sovereigns  have 
consented  to  a  relaxation  in  practice,  under  certain  peculiar 
circumstances,  of  that  absolute  and  complete  jurisdiction  within 
their  respective  territories  which  sovereignty  confers."  "This 
perfect  equality  and  absolute  independence  of  sovereigns  has 
given  rise  to  a  class  of  cases  in  which  every  sovereign  is  under- 
stood to  waive  the  exercise  of  a  part  of  that  complete  exclusive 
territorial  jurisdiction  which  has  been  stated  to  be  the  attribute 
of  every  nation."  "One  of  these  is  the  exemption  of  the  person 
of  the  sovereign  from  arrest  or  detention  within  a  foreign  terri- 
tory. Why  have  the  whole  world  concurred  in  this?  The  an- 
swer cannot  be  mistaken.  A  foreign  sovereign  is  not  under- 


246  EXEMPTIONS  FROM  JURISDICTION. 

stood  as  intending  to  subject  himself  to  a  jurisdiction  incom- 
patible with  his  dignity  and  the  dignity  of  his  nation."  By 
dignity  is  obviously  here  meant  his  independence  of  any  su- 
perior authority.  So  Vattel,  Lib.  4,  c.  7,  s.  108,  speaking  of 
sovereigns,  says: — "S'il  est  venu  en  voyageur,  sa  dignite  seule, 
et  ce  qui  est  du  a  la  nation  qu'il  represents  et  qu'il  gouverne,  le 
met  a  convert  de  toute  insulte,  lui  assure  des  respects  et  toute 
sorte  d'egards,  et  I'exempte  de  toute  juridiction." 

In  the  case  of  The  Duke  of  Brunswick  v.  The  King  of  Han- 
over, 6  Beav.  1,  the  suit  was  against  the  king.  There  was  a 
demurrer  to  the  jurisdiction.  Lord  Langdale  in  an  elaborate 
judgment  allowed  the  demurrer.  He  rejected  the  alleged  doc- 
trine of  a  fictitious  extraterritoriality;  he  admitted  that  there 
are  some  reasons  which  might  justify  the  exemption  of  ambassa- 
dors which  do  not  necessarily  apply  to  a  sovereign,  but  he 
nevertheless  adopted  an  analogy  between  the  cases  of  the  am- 
bassadors and  the  sovereign,  and  allowed  the  demurrer  on  the 
ground  that  the  sovereign  character  is  superior  to  all  jurisdic- 
tion. "After  giving  to  the  subject,"  he  says,  6  Beav.  1,  at 
p.  50,  "the  best  consideration  in  my  power,  it  appearing  to 
me  that  all  the  reasons  upon  which  the  immunities  of  am- 
bassadors are  founded  do  not  apply  to  the  case  of  sovereigns, 
but  that  there  are  reasons  for  the  immunities  of  sovereign 
princes,  at  least  as  strong  if  not  much  stronger  than  any  which 
have  been  advanced  for  the  immunities  of  ambassadors;  that 
suits  against  sovereign  princes  of  foreign  countries  must,  in  all 
ordinary  cases  in  which  orders  or  declarations  of  right  may  be 
made,  and  in  requests  for  justice,  which  might  be  made  without 
any  suit  at  all;  that  even  the  failure  of  justice  in  some  partic- 
ular cases  would  be  less  prejudicial  than  attempts  to  obtain 
it  by  violating  immunities  thought  necessary  to  the  independ- 
ence of  princes  and  nations,  I  think  that  on  the  whole  it  ought 
to  be  considered  as  a  general  rule,  in  accordance  with  the  law 
of  nations,  that  a  sovereign  prince  resident  in  the  dominions 
of  another  is  exempt  from  the  jurisdiction  of  the  Courts  th§re. " 

From  all  these  authorities  it  seems  to  us,  although  other  rea- 
sons have  sometimes  been  suggested,  that  the  real  principle  on 
which  the  exemption  of  every  sovereign  from  the  jurisdiction 
of  every  Court  has  been  deduced  is  that  the  exercise  of  such 
jurisdiction  would  be  incompatible  with  his  regal  dignity, — that 
is  to  say,  with  his  absolute  independence  of  every  superior 
authority.  By  a  similar  examination  of  authorities  we  come  to 


THE  PARLEMENT  BELGE.  247 

the  conclusion,  although  other  grounds  have  sometimes  been 
suggested,  that  the  immunity  of  an  ambassador  from  the  juris- 
diction of  the  Courts  of  the  country  to  which  he  is  accredited 
is  based  upon  his  being  the  representative  of  the  independent 
sovereign  or  state  which  sends  him,  and  which  sends  him  upon 
the  faith  of  his  being  admitted  to  be  clothed  with  the  same 
independence  of  and  superiority  to  all  adverse  jurisdiction  as 
the  sovereign  authority  whom  he  represents  would  be.  ... 
[The  learned  judge  here  discusses  The  Exchange,  7  Cranch  116; 
The  Prins  Frederik,  2  Dod.  451;  The  Athol,  1  Wm.  Rob.  374; 
and  Briggs  v.  The  Lightships,  11  Allen,  157.] 

The  judgment  of  Lord  Campbell  in  De  Haber  v.  The  Queen 
of  Portugal,  17  Q.  B.  171,  seems  to  the  same  effect,  though  the 
decision  may  fairly  be  said  to  apply  only  to  a  suit  directly 
brought  against  the  sovereign.  But  he  relies  on  the  Statute 
of  Anne  with  regard  to  ambassadors,  and  says,  ''Can  we  doubt 
that  in  the  opinion  of  that  great  judge  (Lord  Holt)  the  sover- 
eign himself  would  have  been  considered  entitled  to  the  same 
protection,  immunity,  and  privilege  as  the  minister  who  rep- 
resents him."  And  he  cites  the  statute  thus:  "It  has  always 
been  said  to  be  merely  declaratory  of  the  law  of  nations  recog- 
nised and  enforced  by  our  municipal  law,  and  it  provides  that 
all  process  whereby  the  person  of  any  ambassador  or  of  his 
domestic  servants  may  be  arrested,  or  his  goods  distrained  or 
seized  shall  be  utterly  null  and  void."  The  italics  are  as  written 
by  Lord  Campbell.  And  further,  citing  The  Prins  Frederik, 
2  Dod.  451,  he  says,  "Objection  being  made  that  the  Court  had 
no  jurisdiction,  a  distinction  was  attempted  that  the  salvors 
were  not  suing  the  King  of  the  Netherlands,  and  that  being  in 
possession  of  and  having  a  lien  upon  a  ship  which  they  had 
saved,  the  proceeding  might  be  considered  in  rein.  But  Lord 
Stowell  saw  such  insuperable  difficulties  in  judicially  assessing 
the  amount  of  salvage,  the  payment  of  which  was  to  be  enforced 
by  sale,  that  he  caused  representation  to  be  made  to  the  Dutch 
Government,  who  very  honourably  consented  to  his  disposing 
of  the  matter  as  an  arbitrator."  The  decision  therefore  is  that 
the  immunity  of  the  sovereign  is  at  least  as  great  as  the  im- 
munity of  an  ambassador,  but  as  the  statute  declares  that  the 
law  is,  and  always  has  been,  not  only  that  an  ambassador  is 
free  from  personal  suit  or  process,  but  that  his  goods  are  free 
from  such  process  as  distress  or  seizure,  the  latter  meaning 


248  EXEMPTIONS  FROM  JURISDICTION. 

seizure  by  process  of  law,  it  follows  that  the  goods  of  every 
sovereign  are  free  from  any  seizure  by  process  of  law. 

The  latest  case  on  the  point  seems  to  be  the  case  of  Vavasseur 
v.  Krupp,  9  Ch.  D.  351,  before  this  Court.  The  question  was 
whether  the  English  Court  had  jurisdiction  to  order  "shells" 
belonging  to  the  Mikado  of  Japan  to  be  destroyed,  supposing 
they  were  an  infringement  of  the  plaintiff's  patent.  All  the 
judges  held  that  there  was  no  such  jurisdiction.  "I  suppose," 
says  James,  L.J.,  "that  there  is  a  notion  that  in  some  way  these 
shells  became  tainted  or  affected  through  the  breach  or  attempted 
breach  of  the  patent,  but  even  then  a  foreign  sovereign  cannot 
be  deprived  of  his  property  because  it  has  become  tainted  by  the 
infringement  of  somebody's  patent.  He  says,  'It  is  my  public 
property,  and  I  ask  you  for  it.'  That  seems  to  me  to  be  the 
whole  of  the  case."  Brett,  L.J.,  said,  "The  goods  were  the 
property  of  the  Mikado.  They  were  his  property  as  a  sovereign 
— they  were  the  property  of  his  country. "  "I  shall  assume,  for 
this  purpose,  that  there  was  an  infringement  of  the  patent, 
yet  the  Mikado  has  a  perfect  right  to  have  these  goods;  no 
Court  in  this  country  can  properly  prevent  him  from  having 
goods  which  are  the  public  property  of  his  own  country. ' '  And 
Cotton,  L.J.,  says,  "This  Court  has  no  jurisdiction,  and  in  my 
opinion  none  of  the  Courts  in  this  country  have  any  jurisdic- 
tion to  interfere  with  the  property  of  a  foreign  sovereign,  more 
especially  with  what  we  call  the  public  property  of  the  state 
of  which  he  is  sovereign,  as  distinguished  from  that  which  may 
be  his  own  private  property.  The  Courts  have  no  jurisdiction 
to  do  so,  not  only  because  there  is  no  jurisdiction  as  against  the 
individual,  but  because  there  is  no  jurisdiction  as  against  the 
foreign  country  whose  property  they  are,  although  that  foreign 
country  is  represented,  as  all  foreign  countries  having  a  sover- 
eign are  represented,  by  the  individual  who  is  the  sovereign." 

The  principle  to  be  deduced  from  all  these  cases  is  that,  as  a 
consequence  of  the  absolute  independence  of  every  sovereign 
authority,  and  of  the  international  comity  which  induces  every 
sovereign  state  to  respect  the  independence  and  dignity  of 
every  other  sovereign  state,  each  and  every  one  declines  to  exer- 
cise by  means  of  its  Courts  any  of  its  territorial  jurisdiction 
over  the  person  of  any  sovereign  or  ambassador  of  any  other 
state,  or  over  the  public  property  of  any  state  which  is  destined 
to  public  use,  or  over  the  property  of  any  ambassador,  though 
such  sovereign,  ambassador  or  property  be  within  its  territory, 


THE  PARLEMENT  BELGE.  249 

and,  therefore,  but  for  the  common  agreement,  subject  to  its 
jurisdiction.  .  .  . 

This  proposition  would  determine  the  first  question  in  the 
present  case  in  favour  of  the  protest,  even  if  an  action  in  rem 
were  held  to  be  a  proceeding  solely  against  property  and  not 
a  procedure  directly  or  indirectly  impleading  the  owner  of 
the  property  to  answer  to  the  judgment  of  the  Court.  But  we 
cannot  allow  it  to  be  supposed  that  in  our  opinion  the  owner 
of  the  property  is  not  indirectly  impleaded.  ...  To  implead 
an  independent  sovereign  in  such  a  way  is  to  call  upon  him  to 
sacrifice  either  his  property  or  his  independence.  To  place  him 
in  that  position  is  a  breach  of  the  principle  upon  which  his  im- 
munity from  jurisdiction  rests.  We  think  that  he  cannot  be 
so  indirectly  impleaded,  any  more  than  he  could  be  directly 
impleaded.  The  case  is,  upon  this  consideration  of  it,  brought 
within  the  general  rule  that  a  sovereign  authority  cannot  be 
personally  impleaded  in  any  court. 

But  it  is  said  that  the  immunity  is  lost  by  reason  of  the  ship 
having  been  used  for  trading  purposes.  As  to  this,  it  must  be 
maintained  either  that  the  ship  has  been  so  used  as  to  have 
been  employed  substantially  as  a  mere  trading  ship  and  not  sub- 
stantially for  national  purposes,  or  that  a  use  of  her  in  part 
for  trading  purposes  takes  away  the  immunity,  although  she  is 
in  possession  of  the  sovereign  authority  by  the  hands  of  com- 
missioned officers,  and  is  substantially  in  use  for  national  pur- 
poses. Both  these  propositions  raise  the  question  of  how  the 
ship  must  be  considered  to  have  been  employed. 

As  to  the  first,  the  shin  has  been  by  the  sovereign  of  Belgium, 
by  the  usual  means,  declared  to  be  in  his  possession  as  sovereign, 
and  to  be  a  public  vessel  of  the  state.  It  seems  very  difficult  to 
say  that  any  Court  can  inquire  by  contentious  testimony  whether 
that  declaration  is  or  is  not  correct.  To  submit  to  such  an  in- 
quiry before  the  Court  is  to  submit  to  its  jurisdiction.  It  has 
been  held  that  if  the  ship  be  declared  by  the  sovereign  author- 
ity by  the  usual  means  to  be  a  ship  of  war  that  declaration 
cannot  be  inquired  into.  That  was  expressly  decided  under 
very  trying  circumstances  in  the  case  of  The  Exchange,  7 
Cranch,  116.  "Whether  the  ship  is  a  public  ship  used  for 
national  purposes  seems  to  come  within  the  same  rule.  But  if 
such  an  inquiry  could  properly  be  instituted  it  seems  clear  that 
in  the  present  case  the  ship  has  been  mainly  used  for  the  pur- 
pose of  carrying  the  mails,  and  only  subserviently  to  that  main 


250  EXEMPTIONS  FROM  JURISDICTION. 

object  for  the  purposes  of  trade.  The  carrying  of  passengers 
and  merchandise  has  been  subordinated  to  the  duty  of  carrying 
the  mails.  The  ship  is  not  in  fact  brought  within  the  first 
proposition.  As  to  the  second,  it  has  been  frequently  stated 
that  an  independent  sovereign  cannot  be  personally  sued,  al- 
though he  has  carried  on  a  private  trading  adventure.  It  has 
been  held  that  an  ambassador  cannot  be  personally  sued,  al- 
though he  has  traded;  and  in  both  cases  because  such  a  suit 
would  be  inconsistent  with  the  independence  and  equality  of  the 
state  which  he  represents.  If  the  remedy  sought  by  an  action 
in  rent  against  public  property  is,  as  we  think  it  is,  an  indirect 
mode  of  exercising  the  authority  of  the  Court  against  the  owner 
of  the  property,  then  the  attempt  to  exercise  such  an  authority 
is  an  attempt  inconsistent  with  the  independence  and  equality 
of  the  state  which  is  represented  by  such  owner.  The  property 
cannot  upon  the  hypothesis  be  denied  to  be  public  property; 
the  case  is  within  the  terms  of  the  rule ;  it  is  within  the  spirit 
of  the  rule;  therefore,  we  are  of  opinion  that  the  mere  fact 
of  the  ship  being  used  subordinately  and  partially  for  trading 
purposes  does  not  take  away  the  general  immunity.  For  all 
these  reasons  we  are  unable  to  agree  with  the  learned  judge, 
and  have  come  to  the  conclusion  that  the  judgment  must  be 
reversed. 

Appeal  allowed. 


ANNIE  B.  MASON  v.   INTERCOLONIAL  RAILWAY  OF 
CANADA  &  TRUSTEES. 

SUPREME  JUDICIAL  COURT  OF  MASSACHUSETTS.    1908. 
197  Massachusetts,  349. 

KNOWLTON,  C.  J.  This  is  an  action  brought  by  a  trustee 
process  to  recover  damages  for  personal  injuries.  ...  It 
appears  that  the  so  called  defendant,  the  Intercolonial  Railway 
of  Canada,  is  the  property  of  His  Majesty,  Edward  VII.,  King 
of  the  United  Kingdom  of  Great  Britain  and  Ireland,  in  the 
right  of  his  Dominion  of  Canada,  and  is  not  a  corporation. 
.  .  .  It  appears  that  no  subject,  private  individual  or  cor- 
poration has  any  interest  or  concern  by  way  of  property  or 
direction  in  the  ownership  or  working  of  the  Intercolonial  Rail- 


MASON  v.   INTERCOLONIAL  RY.   OF   CANADA.  251 

way,  but  that  it  is  owned,  and  operated  by  the  King  through 
his  government  of  Canada,  for  the  public  purposes  of  Canada. 
All  income  arising  from  the  operation  of  it  is,  by  the  laws  of 
Canada,  appropriated  to  the  consolidated  revenue  fund  of  Can- 
ada, upon  which  fund  all  the  expenses  of  the  government  of 
Canada  are  chargeable.  All  moneys  and  income  due  by  reason  of 
the  operation  or  business  of  the  railway  are  chargeable  as  belong- 
ing to  the  King,  and  are  collectible  in- his  name.  .  .  .  The  cost 
of  maintenance  and  operation  of  this  railway  is  provided  for 
by  appropriation  of  the  parliament  of  Canada  out  of  the  con- 
solidated revenue  fund,  and  all  the  receipts  from  the  working 
of  the  railway  are  a  part  of  the  moneys  of  Canada,  appropriated 
to  the  consolidated  revenue  fund,  and  are  not  used  for  the 
maintenance  or  operation  of  the  railway,  except  as  the  re- 
ceipts from  customs  or  excise  duties  or  from  any  other  branch 
of  the  public  service  are  so  used.  .  .  . 

The  question  at  once  arises  whether  the  court  has  jurisdiction 
of  a  suit  which  is  virtually  against  the  king  of  a  foreign  coun- 
try. An  answer  in  the  negative  comes  almost  as  quickly. 

The  general  subject  of  the  immunity  of  the  sovereign  power 
from  the  jurisdiction  of  its  own  court  was  considered  and  dis- 
cussed at  great  length  by  Mr.  Justice  Gray,  in  Briggs  v.  Light- 
boats,  11  Allen,  157,  and,  after  an  exhaustive  review  of  the 
authorities,  it  was  held  that  the  action  could  not  be  maintained 
because  the  lightboats  were  the  property  of  the  United  States,  a 
sovereign  power.  Incidentally  the  question  whether  the  public 
property  of  a  foreign  sovereign  is  exempt  from  the  jurisdiction 
of  the  courts  was  discussed,  and  the  cases  bearing  upon  the 
question  were  reviewed.  In  the  opinion,  on  page  186,  we  find 
this  sentence,  which  is  pertinent  to  the  present  case:  "The 
exemption  of  a  public  ship  of  war  of  a  foreign  government  from 
the  jurisdiction  of  our  courts  depends  rather  upon  its  public 
than  upon  its  military  character."  In  Schooner  Exchange  v. 
M'Faddon,  7  Cranch,  116,  Chief  Justice  Marshall  gives  a  very 
clearly  reasoned  statement  of  the  principles  which  control  the 
courts  in  their  decisions  that  they  have  no  jurisdiction  over  a 
sovereign  of  a  foreign  State  who  comes  within  their  precincts. 
The  decision  was  that  the  courts  of  the  United  States  had  no 
jurisdiction  over  a  public  armed  vessel  in  the  service  of  a  sover- 
eign of  another  country  at  peace  with  the  United  States.  At 
page  137  we  find  this  statement  of  a  reason  for  the  law  that 
governs  such  cases:  "One  sovereign  being  in  no  respect  amen- 


252  EXEMPTIONS  FROM  JURISDICTION. 

able  to  another;  and  being  bound  by  obligations  of  the  highest 
character  not  to  degrade  the  dignity  of  his  nation  by  placing 
himself  or  its  sovereign  rights  within  the  jurisdiction  of  another, 
can  be  supposed  to  enter  a  foreign  territory  only  under  an 
express  license,  or  in  the  confidence  that  the  immunities  belong- 
ing to  his  independent  sovereign  station,  though  not  expressly 
stipulated,  are  reserved  by  implication,  and  will  be  extended  to 
him." 

The  doctrine  that  the  courts  have  no  jurisdiction  to  proceed 
with  a  suit  against  the  sovereign  of  another  State  is  established 
in  England  in  numerous  decisions.  It  applies  to  all  proceedings 
against  the  public  property  of  such  a  sovereign.  It  was  clearly 
laid  down  and  applied  in  the  cases  of  Wadsworth  v.  Queen  of 
Spain,  17  Q.  B.  171,  and  DeHaber  v.  Queen  of  Portugal,  17 
Q.  B.  171,  196.  It  was  again  applied  in  The  Constitution,  L.  R. 
4  P.  D.  39,  and  also  in  The  Parlement  Beige,  L.  R.  5  P.  D.  197, 
where  an  elaborate  review  of  the  decisions  is  given  by  Brett, 
L.  J.,  who  says  on  page  214:  "The  principle  to  be  deduced 
from  all  these  cases  is  that,  as  a  consequence  of  the  absolute 
independence  of  every  sovereign  authority,  and  of  the  inter- 
national comity  which  induces  every  sovereign  State  to  respect 
the  independence  and  dignity  of  every  otiier  sovereign  State, 
each  and  every  one  declines  to  exercise  by  means  of  its  courts 
any  of  its  territorial  jurisdiction  over  the  person  of  any  sover- 
eign or  ambassador  of  any  other  State,  or  over  the  public 
property  of  any  State  which  is  destined  to  public  use,  or  over 
the  property  of  any  ambassador,  though  such  sovereign,  am- 
bassador, or  property  be  within  its  territory,  and,  therefore, 
but  for  the  common  agreement,  subject  to  its  jurisdiction." 

In  Vavasseur  v.  Krupp,  9  Ch.  D.  351,  361,  Lord  Justice  Cotton 
sums  up  the  law  as  follows:  "This  court  has  no  jurisdiction, 
and  in  my  opinion  none  of  the  courts  in  this  country  have  any 
jurisdiction,  to  interfere  with  the  property  of  a  foreign  sover- 
eign, more  especially  what  we  call  the  public  property  of  the 
State  of  which  he  is  sovereign  as  distinguished  from  that  which 
may  be  his  own  private  property.  The  courts  have  no  jurisdic- 
tion to  do  so,  not  only  because  there  is  no  jurisdiction  as  against " 
the  individual,  but  because  there  is  no  jurisdiction  as  against 
the  foreign  country  whose  property  they  are,  although  that 
foreign  country  is  represented,  as  all  foreign  countries  having  a 
sovereign  are  represented,  by  the  individual  who  is  the  sover- 
eign." In  Young  v.  The  Scotia,  [1903]  A.  C.  501,  there  is  an 


THE  PORTO  ALEXANDRE.  253 

elaborate  discussion  of  the  exemption  of  public  property  from 
process  of  the  courts  of  its  own  sovereignty.  The  doctrine  was 
applied  to  a  claim  for  salvage  of  a  public  vessel  which  was  used 
by  the  Canadian  government  as  a  ferry  boat,  in  connection  with 
a  line  of  railway  and  as  a  part  of  the  general  means  of  trans- 
portation, just  as  cars  are  used  on  the  Intercolonial  Railway. 
See  also  the  very  recent  case  of  The  Jassy,  75  L.  J.  P.  D.  &  A. 
93,  where  the  principle  suggested  for  our  guidance  was  applied 
to  a  vessel  which  was  the  property  of  the  King  of  Roumania. 

The  principles  which  have  long  been  recognized  as  applicable 
to  the  dealings  of  all  nations  with  one  another,  as  well  as  the 
formal  decisions  of  the  courts,  make  it  plain  that  this  action 
must  be  dismissed  for  want  of  jurisdiction.  The  plaintiff  must 
seek  her  remedy  in  the  courts  of  the  country  in  which  she  re- 
ceived her  injury,  where  there  is  a  statutory  provision  for  such 
cases.  Action  dismissed. 


THE  PORTO  ALEXANDRE. 

COUBT  OF  APPEAL  OF  ENGLAND.    1919 
Law  Reports  [1920]   P.  30. 

Appeal  from  a  decision  of  Hill  J.  setting  aside  the  writ  in  rem 
and  all  subsequent  proceedings  against  the  steamship  Porto 
Alexandre.  .  .  . 

SCRUTTON  L.  J.  In  this  case  the  Porto  Alexandre  came  into 
the  Mersey,  got  on  to  the  mud,  and  was  salved  by  three  Liver- 
pool tugs.  On  arresting  her  to  obtain  security  for  the  payment 
of  their  salvage,  the  Portuguese  Republic,  through  the  Portu- 
guese Charge  d 'Affaires,  put  forward  a  statement  that  she  was 
a  public  vessel  of  the  Portuguese  Republic,  and  was  therefore 
exempt  from  any  process  in  England.  Accordingly  the  defend- 
ants moved  to  set  aside  the  writ  and  arrest.  Hill  J.  in  the 
Admiralty  Court  granted  the  application  and  the  plaintiffs' 
appeal  to  this  Court. 

Now  this  state  and  other  states  proceed  in  their  jurispru- 
dence on  the  assumption  that  sovereign  states  are  equal  and 
independent,  and  that  as  a  matter  of  international  courtesy  no 
one  sovereign  independent  state  will  exercise  any  jurisdiction 
over  the  person  of  the  sovereign  or  the  property  of  any  other 


254  EXEMPTIONS  FROM  JURISDICTION. 

sovereign  state;  and  now  that  sovereigns  move  about  more 
freely  than  they  used  to,  and  do  things  which  they  used  not 
to  do,  and  now  that  states  do  things  which  they  used  not  to  do, 
the  question  arises  whether  there  are  any  limits  to  the  immunity 
which  international  courtesy  gives  as  between  sovereign  inde- 
pendent states  and  their  sovereigns.  I  think  it  has  been  well 
settled  first  of  all  as  to  the  sovereign  that  there  are  no  limits 
to  the  immunity  which  he  enjoys.  His  private  character  is 
equally  free  as  his  public  character.  If  he  chooses  to  come  into 
this  country  under  an  assumed  name  and  indulge  in  privileges 
not  peculiar  to  sovereigns,  of  making  promises  of  marriage  and 
breaking  them,  the  English  Courts  still  say  on  his  appearing  in 
his  true  character  of  sovereign  and  claiming  his  immunity,  that 
he  is  absolutely  free  from  the  jurisdiction  of  this  Court.  That 
is  the  well-known  case  of  Mighell  v.  Sultan  of  Johore,  [1894] 
1  Q.  B.  149.  It  has  been  held,  as  Mr.  Dunlop  admits,  in  The 
Parlement  Beige,  5  P.  D.  197,  that  trading  on  the  part  of  a 
sovereign  does  not  subject  him  to  any  liability  to  the  jurisdic- 
tion. His  ambassador  is  in  the  same  position;  an  ambassador 
coming  here  as  an  ambassador  of  the  sovereign  may  engage  in 
private  trading,  but  it  has  been  held  that  his  immunity  still  pro- 
tects him  even  from  proceedings  in  respect  of  his  private  trad- 
ing. Jervis  C.  J.  in  Taylor  v.  Best  (1854),  14  C.  B.  487,  519, 
said:  ".  .  .  if  the  privilege  does  attach,  it  is  not,  in  the  case 
of  an  ambassador  or  public  minister,  forefeited  by  the  party's 
engaging  in  trade,  as  it  would,  by  virtue  of  the  proviso  in  the 
7  Anne,  c.  12,  s.  5,  in  the  case  of  an  ambassador's  servant.  If 
an  ambassador  or  public  minister,  during  his  residence  in  this 
country,  violates  the  character  in  which  he  is  accredited  to  our 
Court,  by  engaging  in  commercial  transactions,  that  may  raise 
a  question  between  the1  Government  of  this  country  and  that  of 
the  country  by  which  he  is  sent;  but  he  does  not  thereby  lose 
the  general  privilege  which  the  law  of  nations  has  conferred 
upon  persons  filling  that  high  character, — the  proviso  in  the 
statute  of  Anne  limiting  the  privilege  in  cases  of  trading  ap- 
plying only  to  the  servants  of  the  embassy."  There  being  no 
limitation  in  the  case  of  the  sovereign,  and  no  limitation  in  the 
case  of  the  ambassador,  is  there  any  limitation  in  the  case  of 
the  property?  Mr.  Dunlop  has  argued  before  us  that  in  the 
case  of  property  of  the  state  there  is  a  limitation,  and  that — as 
I  understand  him — if  the  property  is  used  in  trading  that  can- 
not be  for  the  public  service  of  the  state.  That  is  not  the  way 


THE  PORTO  ALEXANDRE.  255 

in  which  he  expressed  it,  but  it  appears  to  me  to  be  the  proposi- 
tion which  emerges  from  his  argument. 

We  are  concluded  in  this  Court  by  the  decision  in  The  Parle- 
ment  Beige,  5  P.  D.  197,  217.  Sir  Robert  Phillimore  took  the 
view  that  trading  with  the  property  of  a  state  might  render 
that  property  liable  to  seizure ;  but  the  Court  of  Appeal  in  The 
Perlement  Beige  overruled  the  views  of  Sir  Robert  Phillimore, 
as  I  understand  them.  The  principle  then  laid  down  has  been 
recited  by  the  other  members  of  the  Court.  Brett  L.  J.  said: 
"As  a  consequence  of  the  absolute  independence  of  every  sov- 
ereign authority  and  of  the  international  comity  which  induces 
every  sovereign  state  to  respect  the  independence  of  every  other 
sovereign  state,  each  and  every  one  declines  to  exercise  by  means 
of  any  of  its  Courts,  any  of  its  territorial  jurisdiction  over  the 
person  of  any  sovereign  or  ambassador  of  any  other  state,  or 
over  the  public  property  of  any  state  which  is  destined  to  its 
public  use. ' '  One  of  the  reasons  given  seems  to  me  conclusive : 
the  moment  property  is  arrested  in  the  Admiralty  Court  a  pro- 
ceeding is  instituted  against  the  person,  and  the  person  is  com- 
pelled to  appear  if  he  wants  to  protect  his  property,  and  by 
seizing  his  property  the  personal  rights  of  the  sovereign  or  the 
personal  rights  of  the  state  are  interfered  with.  The  position 
seems  to  me  to  be  very  accurately  stated  in  the  7th  edition  of 
Hall's  International  Law  at  p.  211,  where,  after  dealing  with 
warships  and  public  vessels  so  called,  Mr.  Hall  goes  on  to  deal 
with  other  vessels  employed  in  the  public  service  and  property 
possessed  by  the  state  within  foreign  jurisdiction,  and  says: 
"If  in  a  question  with  respect  to  property  coming  before  the 
Courts  a  foreign  state  shows  the  property  to  be  its  own,  and 
claims  delivery,  jurisdiction  at  once  fails,  except  in  so  far  as  it 
may  be  needed  for  the  protection  of  the  foreign  state." 

I  quite  appreciate  the  difficulty  and  doubt  which  Hill  J.  felt 
in  this  case,  because  no  one  can  shut  his  eyes,  now  that  the 
fashion  of  nationalisation  is  in  the  air,  to  the  fact  that  many 
states  are  trading,  or  are  about  to  trade,  with  ships  belonging 
to  themselves;  and  if  these  national  ships  wander  about  without 
liabilities,  many  trading  affairs  will  become,  difficult;  but  it 
seems  to  me  the  remedy  is  not  in  these  Courts.  The  Parlement 
Beige,  5  P.  D.  197,  217,  excludes  remedies  in  these  Courts.  But 
there  are  practical  commercial  remedies.  If  ships  of  the  state 
find  themselves  left  on  the  mud  because  no  one  will  salve  them 
when  the  State  refuses  any  legal  remedy  for  salvage,  their 


256  EXEMPTIONS  FROM  JURISDICTION. 

owners  will  be  apt  to  change  their  views.  If  the  owners  of  car- 
goes on  national  ships  find  that  the  ship  runs  away  and  leaves 
them  to  bear  all  the  expenses  of  salvage,  as  has  been  done  in 
this  case,  there  may  be  found  a  difficulty  in  getting  cargoes  for 
national  ships.  These  are  matters  to  be  dealt  with  by  negotia- 
tions between  Governments,  and  not  by  Governments  exercising 
their  power  to  interfere  with  the  property  of  other  states  con- 
trary to  the  principles  of  international  courtesy  which  govern 
the  relations  between  independent  and  sovereign  states.  While 
appreciating  the  difficulties  which  Hill  J.  has  felt,  I  think  it  is 
clear  that  we  must,  in  this  Court,  stand  by  the  decision  already 
given,  and  the  appeal  must  be  dismissed. 

[BANKES  L.  J.  and  WARRINGTON  L.  J.  delivered  concurring 
opinions.] 


OWNERS  OF  S.  S.  VICTORIA  v.  OWNERS  OF  S.  S. 
QUILLWARK. 

COUBT  OF  SESSION  OF  SCOTLAND.     1921. 
1922,  1  Scots  Law  Times,  65. 

[The  pursuer  sues  for  damages  amounting  to  £15,000  because 
of  loss  due  to  a  collision  in  the. Panama  Canal  for  which  the 
Quillwark,  a  vessel  belonging  to  the  United  States  Shipping 
Board,  was  responsible.  Six  months  later,  when  the  Quillwark 
was  in  the  Clyde,  the  pursuers  refrained  from  arresting  it  be- 
cause of  a  stipulation  entered  into  by  the  defender  whereby  it 
was  agreed  in  consideration  of  such  refraining  to  pay  any  claim 
against  the  Quillwark  which  might  be  established.  But  the 
defender  expressly  reserved  the  right  to  object  to  the  jurisdic- 
tion of  the  court  on  the  ground  of  the  public  ownership  of  the 
vessel.  When  suit  was  brought  the  defender  entered  a  plea  to 
the  jurisdiction.  Only  so  much  of  the  opinion  is  given  as  per- 
tains to  this  plea.] 

LORD  HUNTER.  ...  In  reply  to  the  defenders'  averments 
the  pursuers  say,  "It  is  believed  and  averred  that  the  'Quill- 
wark' was  at  the  time  of  the  collision  aftermentioned  chartered 
as  a  merchant  vessel.  In  any  event,  she  was  being  employed  as 


NOTE.  257 

a  merchant  ship  for  the  purposes  of  commerce  and  not  in  the 
public  service  of  the  United  States.  The  pursuers  believe  and 
aver  that  the  'Quillwark'  was  officered  and  manned  by  officers 
and  men  belonging  to  the  United  States  Mercantile  Marine,  and 
not  to  the  United  States  Navy,  and  that  she  was  entered  and 
cleared  with  the  Customs  as  a  merchant  vessel. ' ' 

The  second  branch  of  the  pursuers'  second  plea  is  that  on 
account  of  the  uses  for  which  the  "Quillwark"  was  employed 
the  plea  to  jurisdiction  ought  to  be  repelled. 

It  is  in  accordance  with  the  recognised  doctrine  of  interna- 
tional law  that  the  Sovereign  or  Sovereign  Power  of  any  civil- 
ized State  is  not  subject  to  the  civil  jurisdiction  of  any  other 
State  and  that  the  property  owned  by  such  Sovereign  or  Sov- 
ereign power  is  not  liable  to  be  arrested  if  found  within  the 
territory  of  another  State.  It  might  be  thought  that  the  gen- 
erality of  this  doctrine  of  immunity  might  admit  of  an  exception 
where  the  foreign  State  engages  in  trade  and  the  question  arises 
with  reference  to  the  subject  matter  of  that  trade.  The  incon- 
venience of  granting  immunity  in  the  case  of  a  State  owning 
ships  employed  in  ordinary  trading  as  opposed  to  State  business 
has  been  recognised  by  English  judges.  That  circumstance, 
however,  has  not  prevented  the  Courts  in  England  from  giving 
effect  to  the  doctrine.  In  the  "Porto  Alexandra"  ([1920]  P. 
30)  it  is  expressly  decided  that  a  vessel  owned  or  requisitioned 
by  a  Sovereign  independent  State  and  earning  freight  for  the 
State,  is  not  deprived  of  the  privilege,  decreed  by  international 
comity,  of  immunity  from  the  process  of  arrest  by  reason  of 
the  fact  that  she  is  being  employed  in  ordinary  trading  voyages 
carrying  cargoes  for  private  individuals.  No  case  decided  in 
Scotland  was  referred  to,  but  it  was  not  argued  for  the  pursuers 
that  so  far  as  I  am  concerned  I  should  do  other  than  follow  this 
decision  as  containing  a  statement  of  law  equally  applicable  to 
England  or  Scotland.  It  appears  to  me  therefore  that  the  pur- 
suers' averments  as  to  the  employment  of  the  "Quillwark" 
would  not,  if  established,  justify  me  in  holding  that  that  vessel 
was  liable  to  arrestment.  .  .  . 

I  shall  therefore  sustain  their  first  plea  in  law  and  dismiss 
the  action. 

NOTE. — The    opinion    of   Chief    Justice    Marshall    in    The    Schooner 
Exchange  v.  McFaddon   (1812),  7  Cranch,  116,  is  so  thorough  a  treat- 
ment of  the  principles  upon  which  the  immunity  of  public  vessels  ia 
1 9      based  as  to  give  rise  to  the  impression  that  the  immunity  was  estab- 


258  EXEMPTIONS  FROM  JURISDICTION. 

lished  by  that  decision.  The  principle  however  had  long  been  recog- 
nized. In  1637  in  the  case  of  The  Victory,  Marsden,  Law  and  Custom 
of  the  Sea,  I,  496,  it  was  asserted  by  counsel: 

By  the  laws  of  nations  and  the  seas  .  .  .  and  by  the 
right  and  power  of  the  imperial  crowne  of  England  his 
Majesty,  and  his  noble  progenitors,  Kings  of  England  for 
times  immemoriall,  have  had  the  said  preminory  and  free- 
dome  acknowledged  and  yeelded  in  all  ports  and  havens  of 
princes,  their  allies,  that  their  royall  ships  .  .  .  have 
bin  held  free,  and  so  acknowledged,  from  any  such  arrest- 
ing, entry,  visitation,  and  search,  in  as  full  manner  as  if 
they  had  bin  within  the  ports  and  havens  of  their  owne 
dominions. 

In  order  for  a  vessel  to  be  entitled  to  the  immunity  of  a  public 
ship  it  is  not  necessary  that  it  should  be  publicly  owned.  It  is  suf- 
ficient if  it  is  in  the  service  of  the  state  and  is  controlled  by  the 
state,  The  Broadmayne  (1916),  L.  R.  [1916],  P.  64;  The  Eolo  (1917), 
L.  R.  [1918]  2  I.  R.  78;  The  Messicano  (1916),  32  T.  L.  R.  519. 

The  immunity  of  public  property  from  the  jurisdiction  of  another 
state  was  based  upon  the  assumption  that  the  property  in  question 
was  a  part  of  the  machinery  of  government  and  that  any  exercise 
of  control  over  it  would  necessarily  involve  interference  with  the 
operation  of  the  government  to  which  it  belonged.  Furthermore  if  it 
were  made  subject  to  suit,  its  owner  would  be  compelled  to  appear 
in  defense  and  submit  to  the  jurisdiction  of  the  court,  and  thus  the 
personal  immunity  of  the  sovereign  himself  would  be  impaired.  As 
was  said  in  Stanley  v.  Schwalby  (1893),  147  U.  S.  508,  512,  "There  is 
no  distinction  between  suits  against  the  government  directly  and 
suits  against  its  property".  Hence  unless  the  public  functions  of 
states  are  to  be  subject  to  some  degree  of  control  on  the  part  of 
other  states  and  the  immunity  of  the  sovereign  is  to  be  impaired, 
public  property,  at  least  while  used  for  a  public  purpose,  must  be  ex- 
empt from  the  jurisdiction  of  other  countries. 

Public  property  employed  in  private  commerce  is  sometimes  held 
to  lose  its  immunity  in  accordance  with  the  principle  stated  by 
Chief  Justice  Marshall  in  United  States  v.  Planters'  Bank  (1824), 
9  Wheaton,  904,  907,  where  he  said  that  "when  a  government  becomes 
a^  partner  in  any  trading  company,  it  divests  itself,  so  far  as  con- 
cerns the  transactions  of  that  company,  of  its  sovereign  character." 
As  an  incident  to  this  principle  it  has  been  held  that  if  a  foreign  sover- 
eign appears  as  a  plaintiff  in  a  commercial  transaction,  he  may  be  re- 
quired to  find  security  for  costs,  Emperor  of  Brazil  v.  Robinson  (1837), 
5  Dowl.  522.  When  the  State  of  South  Carolina  established  a  series 
of  public  dispensaries  for  the  sale  of  liquor  and  forbade  its  sale 
through  any  other  channels,  it  claimed  that  the  dispensaries  were 
institutions  of  government  and  hence  exempt  from  Federal  taxation. 
This  claim  was  denied  in  South  Carolina  v.  United  States  (1905), 
199  U.  S.  437.  But  as  to  some  forms  of  public  property  employed  in 
private  business,  particularly  ships,  many  countries  still  insist  that 


NOTE.  259 

their  status  In  foreign  jurisdictions  shall  be  determined  by  their 
ownership  rather  than  by  the  nature  of  their  employment.  And  this 
seems  to  be  the  rule  of  international  law. 

The  immunity  of  all  public  property  from  the  jurisdiction  of  other 
states  was  based  upon  a  condition  which  no  longer  exists.  When 
the  immunity  was  established  the  property  affected  was  devoted  to 
distinctly  public  uses,  but  in  the  course  of  the  Great  War  the  range 
of  governmental  activity  was  so  much  enlarged,  particularly  in  the 
field  of  shipping,  that  the  considerations  which  led  to  the  establish- 
ment of  the  rule  exempting  all  public  property  from  the  jurisdic- 
tion of  other  states  no  longer  apply.  Courts,  however,  may  well 
hesitate  to  alter  the  rule.  As  was  pointed  out  in  The  Maipo  (1918),  252 
Fed.  627,  631,  it  may  be  that  a  government  assumes  control  over  its 
shipping  for  the  very  purpose  of  availing  itself  of  the  exemption  to 
which  public  property  has  always  been  entitled,  and  thus  avoid  the 
delays  to  which  its  ships  might  otherwise  be  liable. 

The  extent  to  which  the  immunity  of  publicly  owned  ships  engaged 
in  private  business  will  be  recognized  varies  in  different  countries. 
In  England  and  Scotland  it  is  recognized  to  the  fullest  extent.  In 
the  United  States  the  Supreme  Court  has  not  yet  passed  upon  the 
question,  but  among  the  lower  courts  the  weight  of  authority  is  in 
favor  of  such  immunity.  See  The  Roseric  (1918),  254  Fed.  154; 
contra,  The  Attualita  (1916),  238  Fed.  909;  The  Pesaro  (1921),  277 
Fed.  473.  In  Germany,  in  the  case  of  The  Ice  King,  February  28, 
1921,  a  vessel  belonging  to  the  United  States  Shipping  Board  which 
had  been  arrested  for  damage  caused  by  collision,  the  Court  of  Appeal 
(Hanseatic  Oberlandesgericht)  of  Hamburg  held  that  the  arrest  of 
such  vessel  was  invalid  even  though  the  vessel  was  employed  in  ordi- 
nary commercial  business.  In  the  course  of  its  opinion  the  court 
said: 

Now  this  plaintiff  has  pointed  out,  and  properly,  that  the 
need  of  differentiating  internationally  between  public  ships 
serving  public  purposes  and  public  ships  serving  private 
purposes  like  ordinary  trading  vessels  has  only  just  been 
called  forth  by  developments  during  the  war,  and  therefore 
played  no  part  in  the  formation  of  international  law  up  to 
that  time.  It  is  indeed  worthy  of  consideration  whether  the 
action  of  the  Government  of  the  United  States  in  the  enact- 
ment of  the  Shipping  Act,  by  which  a  very  large  number  of 
trading  vessels  have  been  declared  to  be  public  property 
and  hence  removed  from  the  jurisdiction  of  foreign  states, 
would  not,  because  of  its  bearing  on  international  private 
trade  so  affect  that  rule  of  international  law  (which  after 
all  is  rooted  in  the  comitas  gentium)  and  the  reasons  for  it 
as  to  make  necessary  a  new  international  regulation.  Such 
an  alteration  of  the  law,  accomplished  by  the  making  of 
treaties  or  the  enactment  of  legislation,  it  is  not  permitted  to 
this  court  to  anticipate. 

The  court  ordered  the  release  of  the  vessel,  and  the  decision  wae 
affirmed  by  the  German  Supreme  Court  December  10,  1921. 


260  EXEMPTIONS  FROM  JURISDICTION. 

In  The  Porto  Alexandra  (1919),  L.  R.  [1920]  P.  30,  34,  Lord 
Justice  Bankes  had  faced  the  same  difficulty  and  had  expressed  the 
opinion  that  the  remedy  is  not  to  be  found  in  the  courts.  In  Italy 
and  Belgium  the  distinction  between  public  and  private  acta  of  the 
state  is  fully  recognized.  In  Italy  a  publicly  owned  vessel  employed 
in  private  business  is  subject  to  arrest.  In  Belgium  such  a  vessel 
is  not  subject  to  arrest,  but  a  claim  against  it  may  be  prosecuted  to 
judgment. 

For  other  examples  of  the  exemption  of  public  property  from 
judicial  process  in  a  foreign  state,  see  The  Constitution  (1879)  L.  R. 
4  P.  D.  39,  in  which  the  court  refused  to  order  the  arrest  of  a  war 
vessel  in  order  to  compel  payment  for  salvage  services;  Briggs  v. 
The  Lightboats  (1865),  11  Allen  (Mass.),  157,  in  which  the  court 
declined  to  enforce  a  builder's  lien  on  lightboats  constructed  for  the 
United  States;  Vavasseur  v.  Krupp  (1878),  L.  R.  9  Ch.  Div.  351,  in 
which  the  court  refused  to  enjoin  delivery  to  the  Government  of 
Japan  of  certain  shells  manufactured  for  it  in  Germany  and  brought 
to  England  for  shipment  to  Japan.  The  court  said: 

Even  if  the  Mikado  had  brought  himself  into  court  as  an 
ordinary  defendant,  that,  in  my  opinion,  would  not  give  the 
court  jurisdiction  as  against  the  subject  matter,  namely  juris- 
diction to  interfere  with  the  public  property  of  Japan  which 
is  represented  here  by  the  Mikado. 

That  the  exemption  is  strictly  confined  to  the  ships  of  a  sovereign 
power  is  shown  by  The  Charkieh  (1873),  L.  R.  4  Adm.  &  Ecc. 
59,  where  it  was  denied  to  a  ship  belonging  to  the  Khedive  of  Egypt, 
who  was  a  subject  of  the  Sultan  of  Turkey.  Public  ships  are  how- 
ever subject  to  the  local  police  regulations,  Moore,  Digest,  II,  583. 
A  court  may  adopt  suitable  means  to  ascertain  whether  a  vessel 
purporting  to  be  a  public  vessel  is  what  she  claims  to  be,  Talbot  v. 
Jansen  (1795),  3  Dallas,  133.  As  to  what  is  a  public  ship,  see 
Tucker  v.  Alexandroff  (1901),  183  U.  S.  424.  As  to  the  status  of  a 
military  force  permitted  to  march  through  the  country,  see  Coleman 
v.  Tennessee  (1879),  97  U.  S.  509,  515.  Prisoners  on  a  ship  of  war 
are  not  subjected  to  the  local  jurisdiction  when  a  ship  puts  into  a 
neutral  port,  L'Invincible  (1816),  1  Wheaton,  238,  252.  As  to  asylum 
on  war  ships,  see  Int.  Law  Situations,  1902,  21;  Moore's  Digest,  II,  845. 

Although  the  property  belonging  to  a  state  or  requisitioned  for  its 
use  is  not  subject  to  arrest  so  long  as  it  is  in  the  possession  of  the 
state,  a  lien  may  be  enforced  against  such  property  in  the  United 
States  if  it  is  not  in  public  possession,  for  in  such  circumstances  there 
is  no  disturbance  of  possession,  The  Davis  (1869),  10  Wallace,  15, 
Johnson  Lighterage  Co.  no.  24  (1916),  231  Fed.  365;  The  Beaverton 
(1919),  273  Fed.  539.  If  a  ship  or  other  property  is  requisitioned  for 
the  public  service  and  is  in  public  possession,  it  may  not  be  de- 
tained, The  Broadmayne  (1916),  L.  R.  [1916]  P.  64,  but  if  the  com- 
plainant's right  against  the  vessel  arose  prior  to  requisition,  he  may 
pursue  it  Eut  tfac^gMHplaiaant  may-  pwsaie-lwB-risbt  to  judgment,  en- 


PAPAYANNI  v.  RUSSIAN  &c.  TRADING  CO.       261 

forcement  of  the  judgment  being  deferred  until  the  property  in 
question  has  passed  into  private  possession,  The  Messicano  (1916),  32 
T.  L.  R.  519;  but  in  the  case  of  property  which  is  owned  by  the  state, 
Mr.  Justice  Holmes  said  in  The  Western  Maid  (1922),  257  U.  S.  419, 
that  since  "property  in  public  possession  cannot  be  seized  to  the  dis- 
turbance of  that  possession,  no  right  arises  which  can  be  enforced 
against  that  property  when  it  passes  from  public  to  private  posses- 
sion." The  same  principle  was  followed  by  the  English  Court  of  Ap- 
peal in  The  Tervaete  (1922),  38  T.  L.  R.  825. 

For  further  discussion  of  the  immunity  of  public  property,  see 
Walton,  "State  Immunity  in  the  Laws  of  England,  France,  Italy 
and  Belgium,"  Journal  of  the  Society  of  Comparative  Legislation  and 
International  Law,  (Series  III),  II,  252;  Cobbett,  Cases  and  Opinions, 
I,  261;  Bonfils  (Fauchille),  sec.  643;  Hyde,  I,  435;  Moore,  Digest,  II, 
662. 


SECTION  4.    EXTERRITORIALITY. 

PAPAYANNI  AND  OTHERS,  Appellants  v.  THE  RUSSIAN 

STEAM  NAVIGATION  AND  TRADING  CO., 

Respondents. 

JUDICIAL  COMMITTEE  OF  THE  PBIVY  COUNCIL  OF  GREAT  BRITAIN.     1863. 
2  Moore,  Privy  Council  (N.  S.),  161 

On  an  appeal  from  Her  Majesty's  Supreme  Consular  Court, 
Constantinople. 

[The  steamer  Laconia,  belonging  to  the  appellants,  a  British 
corporation,  collided  in  the  Sea  of  Marmora  with  the  Colchide, 
the  property  of  the  respondents,  a  Russian  corporation.  As  a 
result  the  Colchide  was  lost.  Her  owners  then  instituted  pro- 
ceedings against  the  owners  of  the  Laconia  before  the  British 
Supreme  Consular  Court  at  Constantinople,  and  by  permission 
of  the  Russian  Government  submitted  themselves  to  its  jurisdic- 
tion. From  the  decision  of  that  tribunal  the  present  appeal  was 
taken,  chiefly  on  the  ground  that  a  British  consular  court  in 
Turkey  had  jurisdiction  only  over  suits  between  British  subjects. 
It  appeared  in  evidence  that  the  corporation  styled  "The  Gov- 
ernor and  Company  of  Merchants  of  England  trading  to  the 
Levant  Seas,"  chartered  by  James  I  in  1606,  had  been  author- 
ized by  Charles  II  in  1662  to  institute  consular  courts  in  the 
Ottoman  Dominions  for  the  government  of  transactions  between 
British  merchants  therein.  These  privileges,  which  were  long 


262  EXEMPTIONS  FROM  JURISDICTION. 

exercised  by  the  tacit  consent  of  the  Ottoman  Government,  were 
expressly  confirmed  by  treaty  in  1809.] 

Their  Lordships'  judgment  was  pronounced  by  DR.  LUSH- 
INGTON. 

In  considering  what  power  and  what  jurisdiction  was  con- 
ceded to  Great  Britain  within  certain  portions  of  the  Turkish 
dominions,  it  must  always  be  borne  in  mind  that  in  almost  all 
transactions,  whether  political  or  mercantile,  a  wide  difference 
subsists  in  the  dealings  between  an  Oriental  and  a  Christian 
State  and  the  intercourse  between  two  Christian  nations. 

This  is  an  undoubted  fact.  Many  of  the  reasons  are  obvious, 
but  this  is  not  the  occasion  for  discussing  them.  It  is  sufficient 
for  us  to  know  and  acknowledge  that  such  is  the  fact. 

It  is  true  beyond  all  doubt  that,  as  a  matter  of  right,  no  State 
can  claim  jurisdiction  of  any  kind  within  the  territorial  limits 
of  another  independent  State. 

It  is  also  true  that  between  two  Christian  States  all  claims 
for  jurisdiction  of  any  kind,  or  exemption  from  jurisdiction, 
must  be  founded  on  Treaty,  or  engagements  of  similar  validity. 
Such,  indeed,  were  Factory  establishments  for  the  benefit  of 
trade. 

But  though,  according  to  the  laws  and  usages  of  European 
nations,  a  cession  of  jurisdiction  to  the  subjects  of  one  State 
within  the  territory  of  another,  would  require,  generally  at 
least,  the  sanction  of  a  Treaty,  it  may  by  no  means  follow  that 
the  same  strict  forms,  the  same  precision  of  Treaty  obligation, 
would  be  required  or  found  in  intercourse  with  the  Ottoman 
Porte.  .  .  . 

Any  mode  of  proof  by  which  it  is  shown  that  a  privilege  is 
conceded  is,  according  to  the  principles  of  natural  justice,  suf- 
ficient for  the  purpose.  The  formality  of  a  Treaty  is  the  best 
proof  of  the  consent  and  acquiescence  of  parties,  but  it  is  not 
the  only  proof,  nor  does  it  exclude  other  proof;  and  more  espe- 
cially in  transactions  with  Oriental  States. 

Consent  may  be  expressed  in  various  ways ;  by  constant  usage 
permitted  and  acquiesced  in  by  the  authorities  of  the  State, 
active  assent,  or  silent  acquiescence,  where  there  must  be  full 
knowledge.  .  .  . 

We  think,  looking  at  the  whole  of  this  case,  that  so  far  as  the 
Ottoman  Government  is  concerned,  it  is  sufficiently  shown  that 
they  have  acquiesced  in  allowing  to  the  British  Government  a 


IN  RE  BOSS.  263 

jurisdiction,  whatsoever  be  its  peculiar  kind,  between  British 
subjects  and  the  subjects  of  other  Christian  States. 

It  appears  to  us  that  the  course  was  this:  that  at  first,  from 
the  total  difference  of  religious  habits  and  feelings,  it  was  neces- 
sary to  withdraw  as  far  as  practicable  British  subjects  from  the 
native  Courts;  then  in  the  progress  of  time  commerce  increasing, 
and  various  nations  having  the  same  interest  in  abstaining  from 
resort  to  the  Tribunals  of  Mussulmans,  &c.,  recourse  was  had  to 
Consular  Courts;  and  by  degrees  the  system  became  general. 

Of  all  this  the  Government  of  the  Ottoman  Porte  must  have 
been  cognizant,  and  their  long  acquiescence  proves  consent.  .  .  . 

Though  the  Ottoman  Porte  could  give  and  has  given  to  the 
Christian  Powers  of  Europe  authority  to  administer  justice. to 
their  own  subjects  according  to  their  own  laws,  it  neither  has 
professed  to  give  nor  could  give  to  one  such  Power  any  jurisdic- 
tion over  the  subjects  of  another  Power.  But  it  has  left  those 
Powers  at  liberty  to  deal  with  each  other  as  they  may  think  fit, 
and  if  the  subjects  of  one  country  desire  to  resort  to  the  Tribu- 
nals of  another,  there  can  be  no  objection  to  their  doing  so  with 
the  consent  of  their  own  Sovereign  and  that  of  the  Sovereign  to 
whose  Tribunals  they  resort.  .  .  . 

The  general  right  of  the  Consular  Court  to  entertain  the  suit 
under  these  circumstances  is  perfectly  clear,  and  to  throw  any 
doubt  upon  it  would  be  to  subvert  all  the  principles  upon  which 
justice  is  administered  amongst  the  subjects  of  Christian  Powers 
in  this  and  other  countries  of  the  East. 


IN  RE  ROSS,  PETITIONER. 

SUPREME  COUBT  OF  THE  UNITED  STATES.     1891. 
140  U.   S.  453. 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the 
Northern  District  of  New  York.  .  .  . 

[The  petitioner,  a  native  of  Prince  Edward  Island  and  a  Brit- 
ish subject,  was  a  member  of  the  crew  of  the  American  merchant 
ship  Bullion.  In  1880,  the  ship  being  then  in  the  harbor  of 
Yokohama,  Japan,  the  petitioner,  while  on  the  ship,  assaulted  and 


264  EXEMPTIONS  FROM  JURISDICTION. 

killed  the  second  mate.  He  was  arrested  by  direction  of  the 
master  of  the  vessel  and  confined  in  jail  at  Yokohama.  The  next 
day  a  complaint  charging  him  with  murder  was  filed  by  the 
master  of  the  vessel  with  the  American  Consul  General  at  Yoko- 
hama. The  accused  denied  the  jurisdiction  of  the  Consular 
Court  on  the  ground  that  he  was  not  an  American  citizen  and 
that  he  had  not  been  indicted  or  presented  by  a  grand  jury  as 
required  by  the  Constitution  of  the  United  States.  These  ob- 
jections were  overruled.  The  Consular  Court  then  proceeded 
to  trial,  found  the  accused  guilty  and  sentenced  him  to  death. 
This  sentence  was  approved  by  the  American  Minister  to  Japan, 
but  a  pardon  was  granted  by  President  Hayes  "on  condition 
that  the  said  John  M.  Ross  be  imprisoned  at  hard  labor  for  the 
term  of  his  natural  life  in  the  Albany  penitentiary,  in  the  State 
of  New  York."  Pardon  was  accepted  by  the  accused  on  the 
terms  stated.  Nearly  ten  years  later,  he  applied  to  the  United 
States  Circuit  Court  for  a  writ  of  habeas  corpus  for  his  dis- 
charge, alleging  that  his  conviction,  sentence  and  imprisonment 
were  unlawful  because  of  the  Consular  Court's  lack  of  jurisdic- 
tion. The  Circuit  Court  denied  his  petition,  44  Fed.  185,  and  he 
appealed.] 

MR.  JUSTICE  FIELD    .    .    .    delivered  the  opinion  of  the  court. 

The  Circuit  Court  did  not  refuse  to  discharge  the  petitioner 
upon  any  independent  conclusion  as  to  the  validity  of  the  legis- 
lation of  Congress  establishing  the  consular  tribunal  in  Japan, 
and  the  trial  of  Americans  for  offences  committed  within  the 
territory  of  that  country,  without  the  indictment  of  a  grand 
jury,  and  without  a  trial  by  a  petit  jury,  but  placed  its  decision 
upon  the  long  and  uniform  acquiescence  by  the  executive,  ad- 
ministrative, and  legislative  departments  of  the  government  in 
the  validity  of  the  legislation.  Nor  did  the  Circuit  Court  con- 
sider whether  the  status  of  the  petitioner  as  a  citizen  of  the 
United  States,  or  as  an  American  within  the  meaning  of  the 
treaty  with  Japan,  could  be  questioned,  while  he  was  a  seaman 
of  an  American  ship,  under  the  protection  of  the  American  flag, 
but  simply  stated  the  view  taken  on  that  subject  by  the  Minister 
to  Japan,  the  State  Department,  and  the  President.  Said  the 
court:  "During  the  thirty  years  since  the  statutes  conferring 
the  judicial  powers  on  ministers  and  consuls,  which  have  been 
referred  to,  were  enacted,  that  jurisdiction  has  been  freely  ex- 
ercised. Citizens  of  the  United  States  have  been  tried  for  seri- 


IN  BE  BOSS.  265 

ous  offences  before  these  officers,  without  preliminary  indictment 
or  a  common-law  jury,  and  convicted  and  punished.  These 
trials  have  been  authorized  by  the  regulations,  orders,  and  de- 
crees of  ministers,  and  it  must  be  presumed  that  the  regulations, 
orders,  and  decrees  of  ministers  prescribing  the  mode  of  trial 
have  been  transmitted  to  the  Secretary  of  the  State,  and  by  him 
been  laid  before  Congress  for  revision,  as  required  by  law.  Un- 
less the  petitioner  was  not  properly  subject  to  this  jurisdiction 
because  he  was  not  a  citizen  of  the  United  States,  his  trial  and 
sentence  were  in  all  respects  modal,  as  well  as  substantial,  reg- 
ular and  valid  under  the  laws  of  Congress,  according  to  the  con- 
struction placed  upon  these  statutes  by  the  acquiescence  of  the 
executive,  administrative,  and  legislative  departments  of  the 
government  for  this  long  period  of  time." 

Under  these  circumstances  the  Circuit  Court  was  of  opinion 
that  it  ought  not  to  adjudge  that  the  sentence  imposed  upon  the 
petitioner  was  utterly  unwarranted  and  void,  when  the  case  was 
one  in  which  his  rights  could  be  adequately  protected  by  this 
court,  and  when  a  decision  by  the  Circuit  Court  setting  him  at 
liberty,  although  it  might  be  reversed,  would  be  practically  ir- 
revocable. 

The  Circuit  Court  might  have  found  an  additional  ground  for 
not  calling  in  question  the  legislation  of  Congress,  in  the  uni- 
form practice  of  civilized  governments  for  centuries  to  provide 
consular  tribunals  in  other  than  Christian  countries,  or  to  invest 
their  consuls  with  judicial  authority,  which  is  the  same  thing, 
for  the  trial  of  their  own  subjects  or  citizens  for  offences  com- 
mitted in  those  countries,  as  well  as  for  the  settlement  of  civil 
disputes  between  them ;  and  in  the  uniform  recognition,  down 
to  the  time  of  the  formation  of  our  government,  of  the  fact  that 
the  establishment  of  such  tribunals  was  among  the  most  import- 
ant subjects  for  treaty  stipulations.  This  recognition  of  their 
importance  has  continued  ever  since,  though  the  powers  of  those 
tribunals  are  now  more  carefully  defined  than  formerly. 
Dainese  v.  Hale,  91  U.  S.  13. 

The  practice  of  European  governments  to  send  officers  to  re- 
side in  foreign  countries,  authorized  to  exercise  a  limited  juris- 
diction over  vessels  and  seamen  of  their  country,  to  watch  the 
interests  of  their  countrymen  and  to  assist  in  adjusting  their 
disputes  and  protecting  their  commerce,  goes  back  to  a  very 
early  period,  even  preceding  what  are  termed  the  Middle  Ages. 
During  those  ages  these  commercial  magistrates,  generally  desig- 


266  EXEMPTIONS  FKOM  JURISDICTION. 

nated  as  consuls,  possessed  to  some  extent  a  representative  char- 
acter, sometimes  discharging  judicial  and  diplomatic  functions. 
In  other  than  Christian  countries  they  were,  by  treaty  stipula- 
tions, usually  clothed  with  authority  to  hear  complaints  against 
their  countrymen  and  to  sit  in  judgment  upon  them  when 
charged  with  public  offences.  After  the  rise  of  Islamism,  and 
the  spread  of  its  followers  over  eastern  Asia  and  other  countries 
bordering  on  the  Mediterranean,  the  exercise  of  this  judicial 
authority  became  a  matter  of  great  concern.  The  intense  hos- 
tility of  the  people  of  Moslem  faith  to  all  other  sects,  and  par- 
ticularly to  Christians,  affected  all  their  intercourse,  and  all 
proceedings  had  in  their  tribunals.  Even  the  rules  of  evidence 
adopted  by  them  placed  those  of  different  faith  on  unequal 
grounds  in  any  controversy  with  them.  For  this  cause,  and  by 
reason  of  the  barbarous  and  cruel  punishments  inflicted  in  those 
countries,  and  the  frequent  use  of  torture  to  enforce  confession 
from  parties  accused,  it  was  a  matter  of  deep  interest  to  Chris- 
tian governments  to  withdraw  the  trial  of  their  subjects,  when 
charged  with  the  commission  of  a  public  offence,  from  the  arbi- 
trary and  despotic  action  of  the  local  officials.  Treaties  confer- 
ring such  jurisdiction  upon  these  consuls  were  essential  to  the 
peaceful  residence  of  Christians  within  those  countries  and  the 
successful  prosecution  of  commerce  with  their  people. 

The  treaty-making  power  vested  in  our  government  extends 
to  all  proper  subjects  of  negotiation  with  foreign  governments. 
It  can,  equally  with  any  of  the  former  or  present  governments 
of  Europe,  make  treaties  providing  for  the  exercise  of  judicial 
authority  in  other  countries  by  its  officers  appointed  to  reside 
therein. 

We  do  not  understand  that  any  question  is  made  by  counsel 
as  to  its  power  in  this  respect.  His  objection  is  to  the  legisla- 
tion by  which  such  treaties  are  carried  out,  contending  that,  so 
far  as  crimes  of  a  felonious  character  are  concerned,  the  same 
protection  and  guarantee  against  an  undue  accusation  or  an  un- 
fair trial,  secured  by  the  Constitution  to  citizens  of  the  United 
States  at  home,  should  be  enjoyed  by  them  abroad.  In  none  of 
the  laws  which  have  been  passed  by  Congress  to  give  effect  to 
treaties  of  the  kind  has  there  been  any  attempt  to  require  in- 
dictment by  a  grand  jury  before  one  can  be  called  upon  to  an- 
swer for  a  public  offence  of  that  grade  committed  in  those  coun- 
tries, or  to  secure  a  jury  on  the  trial  of  the  offence.  Yet  the  laws 
on  that  subject  have  been  passed  without  objection  to  tiwir 


IN  RE  ROSS.  267 

constitutionality.  Indeed,  objection  on  that  ground  was  never 
raised  in  any  quarter,  so  far  as  we  are  informed,  until  a  recent 
period. 

It  is  now,  however,  earnestly  pressed  by  counsel  for  the  peti- 
tioner, but  we  do  not  think  it  tenable.  By  the  Constitution  a 
government  is  ordained  and  established  "for  the  United  States 
of  America, ' '  and  not  for  countries  outside  of  their  limits.  The 
guarantees  it  affords  against  accusation  of  capital  or  infamous 
crimes,  except  by  indictment  or  presentment  by  a  grand  jury, 
and  for  an  impartial  trial  by  a  jury  when  thus  accused,  apply 
only  to  citizens  and  others  within  the  United  States,  or  who  are 
brought  there  for  trial  for  alleged  offences  committed  elsewhere, 
and  not  to  residents  or  temporary  sojourners  abroad.  Cook  v. 
United  States,  138  U.  S.  157,  181.  The  Constitution  can  have 
no  operation  in  another  country.  When,  therefore,  the  repre- 
sentatives or  officers  of  our  government  are  permitted  to  exer- 
cise authority  of  any  kind  in  another  country,  it  must  be  on  such, 
conditions  as  the  two  countries  may  agree  upon,  the  laws  of 
neither  one  being  obligatory  upon  the  other.  The  deck  of  a 
private  American  vessel,  it  is  true,  is  considered  for  many  pur- 
poses constructively  as  territory  of  the  United  States,  yet  per- 
sons on  board  of  such  vessels,  whether  officers,  sailors,  or  passen- 
gers, cannot  invoke  the  protection  of  the  provisions  referred  to 
until  brought  within  the  actual  territorial  boundaries  of  the 
United  States.  And,  besides,  their  enforcement  abroad  in  nu- 
merous places,  where  it  would  be  highly  important  to  have  con- 
suls invested  with  judicial  authority,  would  be  impracticable 
from  the  impossibility  of  obtaining  a  competent  grand  or  petit 
jury.  The  requirement  of  such  a  body  to  accuse  and  to  try  an 
offender  would,  in  a  majority  of  cases,  cause  an  abandonment 
of  all  prosecution.  The  framers  of  the  Constitution,  who  were 
fully  aware  of  the  necessity  of  having  judicial  authority  exer- 
cised by  our  consuls  in  non-Christian  countries,  if  commercial 
intercourse  was  to  be  had  with  their  people,  never  could  have 
supposed  that  all  the  guarantees  in  the  administration  of  the 
law  upon  criminals  at  home  were  to  be  transferred  to  such  con- 
sular establishments,  and  applied  before  an  American  who  had 
committed  a  felony  there  could  be  accused  and  tried.  They 
must  have  known  that  such  a  requirement  would  defeat  the 
main  purpose  of  investing  the  consul  with  judicial  authority. 
While,  therefore,  in  one  aspect  the  American  accused  of  crime 
committed  in  those  countries  is  deprived  of  the  guarantees  of 


268  EXEMPTIONS  FROM  JURISDICTION. 

the  Constitution  against  unjust  accusation  and  a  partial  trial, 
yet  in  another  aspect  he  is  the  gainer,  in  being  withdrawn  from 
the  procedure  of  their  tribunals,  often  arbitrary  and  oppressive, 
and  sometimes  accompanied  with  extreme  cruelty  and  torture. 
Letter  of  Mr.  Gushing  to  Mr.  Calhoun  of  Sept.  29,  1844,  accom- 
panying President's  message  communicating  abstract  of  treaty 
with  China,  Senate  Doc.  58,  28th  Cong.  2d  Sess. ;  Letter  on  Ju- 
dicial Exterritorial  Rights  by  Secretary  Frelinghuysen  to  Chair- 
man of  Senate  Committee  on  Foreign  Relations  of  April  29, 
1882,  Senate  Doc.  89,  47th  Cong.  1st  Sess.;  Phillimore  on  Int. 
Law,  vol.  2,  part  7 ;  Halleck  on  Int.  Law,  c.  41. 

"We  turn  now  to  the  treaties  between  Japan  and  the  United 
States. 

The  treaty  of  June  17,  1857,  executed  by  the  consul  general 
of  the  United  States  and  the  governors  of  Simoda,  is  the  one 
which  first  conceded  to  the  American  consul  in  Japan  authority 
to  try  Americans  committing  offences  in  that  country.  Article 
IV.  of  that  treaty  is  as  follows : 

"ART.  IV.  Americans  committing  offences  in  Japan  shall 
be  tried  by  the  American  consul  general  or  consul,  and  shall  be 
punished  according  to  American  laws.  Japanese  committing 
offences  against  Americans  shall  be  tried  by  the  Japanese  au- 
thorities and  punished  according  to  Japanese  laws."  11  Stat. 
723.  .  .  . 

Our  government  has  always  treated  Article  IV.  of  the  treaty 
of  1857  as  continuing  in  force,  and  it  is  published  as  such  in 
the  United  States  Consular  Regulations,  issued  in  1888.  Ap- 
pendix No.  1,  p.  313.  Its  official  interpretation  is  found  in 
Article  71  of  those  regulations,  which  declares  that  "consuls 
have  exclusive  jurisdiction  over  crimes  and  offences  committed 
by  citizens  of  the  United  States  in  Japan."  Mr.  Bingham,  our 
minister  to  that  country  for  several  years  after  the  treaty  of 
1858,  always  assumed  the  incorporation  into  that  treaty  of 
all  the  provisions  of  the  treaty  of  1857,  or  that  they  were 
saved  by  it.  When  the  prisoner  reached  San  Francisco,  on 
his  way  from  Japan  to  Albany,  he  applied  to  the  Circuit  Court 
of  the  United  States  for  a  writ  of  habeas  corpus,  and  cited 
the  sixth  article  of  the  treaty  of  1858,  insisting  that  it  only 
provided  for  the  trial  of  Americans  by  American  Consular 
Courts  in  Japan  for  offences  committed  against  Japanese,  and 
therefore  he  could  not  be  held  to  answer  for  the  murder  of  the 
second  officer  of  the  American  ship  Bullion,  when  in  Japanese 


IN  RE  ROSS.  269 

waters,  because  he  was  not  a  Japanese  subject.  In  a  communi- 
cation made  under  date  of  June  8,  1881,  by  the  minister  to  the 
Secretary  of  State,  reference  is  made  to  this  position,  and  the 
following  language  is  used:  "Nothing,  in  my  opinion,  could 
more  strongly  testify  to  the  utter  weakness  of  the  claim  made 
for  Ross  against  the  government  than  this  attempt  to  limit  the 
jurisdiction  of  our  consuls  in  Japan  over  Americans,  guilty  of 
crimes  by  them  committed  within  this  empire,  to  such  crimes 
only  as  they  should  commit  upon  the  persons  of  Japanese  sub- 
jects. According  to  this  logic,  Americans  may  in  Japan  murder 
each  other  and  the  citizens  or  subjects  of  all  lands  save  the 
subjects  of  Japan  with  impunity — as  it  is  admitted  by  this  gov- 
ernment that  it  cannot  try  an  American  for  any  offence  what- 
ever— and  it  must  also  be  conceded  that  the  tribunals  of  no 
other  government  than  our  own  can  try  Americans  for  crimes 
by  them  committed  within  this  empire.  In  giving  my  reasons 
to  the  department  for  sustaining  the  jurisdiction  of  the  United 
States  in  this  case,  and  for  approving  as  I  did  the  conviction 
of  Ross,  in  which  the  consul  general  and  the  four  associations 
who  sat  with  him  had  concurred,  I  cited  Article  IV.  of  our  con- 
vention of  1857  with  Japan,  to  wit:  'That  Americans  commit- 
ting offences  in  Japan  shall  be  tried  by  the  American  consul 
general  or  consul,  and  shall  be  punished  according  to  American 
law.'  This  provision  of  the  convention  of  1857  and  all  other 
provisions  thereof  were  saved  and  incorporated  in  our  treaty  of 
1858  with  Japan,  Article  XII.  [quoted  above].  You  will  ob- 
serve that  Mr.  Townsend  Harris  was  the  consul  general  of  the 
United  States  who  negotiated  both  of  these  treaties  with  Japan, 
and  that  the  treaty  of  1858  was  ratified  April  12,  1860,  and 
that  thereafter,  to  wit,  June  22,  1860,  Congress  passed  the  act 
to  carry  into  effect  this  treaty  with  Japan,  and  provided  that 
the  minister  and  consuls  of  the  United  States  in  Japan  be  'fully 
empowered  to  arraign  and  try  in  the  manner  (in  said  statute 
provided)  all  citizens  of  the  United  States  charged  with  offences 
against  law  committed'  (by  them  in  Japan)  ;  [sec.  4084,  Rev. 
Stat]  ;  and  also  by  section  4086  provided  that  the  jurisdiction 
in  both  civil  and  criminal  matters  in  Japan  shall  'in  all  cases 
be  exercised  and  enforced  in  conformity  with  the  laws  of  the 
United  States,  which  so  far  as  necessary  to  execute  such  treaty 
are  extended  over  all  citizens  of  the  United  States  therein,  and 
over  all  others  to  the  extent  the  terms  of  the  treaty  justify  or 
require. '  Here  was  the  construction  above  stated  by  me  asserted 


270  EXEMPTIONS  FROM  JURISDICTION. 

by  the  same  Senate  which  ratified  the  treaty,  and  by  the  same 
President  who  approved  both  the  treaty  and  the  act  of  Con- 
gress. The  President  and  the  department  have  always  con- 
strued the  treaty  of  1858  as  carrying  with  it  and  incorporating 
therein  the  fourth  article  and  all  other  provisions  of  the  con- 
vention of  1857." 

The  legislation  of  Congress  to  carry  into  effect  the  treaty 
with  Japan  is  found  in  the  Revised  Statutes,  in  sections  most 
of  which  apply  equally  to  treaties  with  China,  Siam,  Egypt 
and  Madagascar  (sees.  4083-4091).  Confining  ourselves  to  the 
treaty  with  Japan  only,  we  find  that  the  legislation  secures  a 
regular  and  fair  trial  to  Americans  committing  offences  within 
that  empire. 

It  enacts  that  the  minister  and  consuls  of  the  United  States, 
appointed  to  reside  there,  shall,  in  addition  to  other  poAvers  and 
duties  imposed  upon  them  respectively,  be  invested  with  the 
judicial  authority  therein  described,  which  shall  appertain  to 
their  respective  offices  and  be  a  part  of  the  duties  belonging 
thereto,  so  far  as  the  same  is  allowed  by  treaty ;  and  empowers 
them  to  arraign  and  try,  in  the  manner  therein  provided,  all 
citizens  of  the  United  States  charged  with  offences  against  law 
committed  in  that  country,  and  to  sentence  such  offenders  as 
therein  provided,  and  to  issue  all  suitable  and  necessary  process 
to  carry  their  authority  into  execution.  It  declares  that  their 
jurisdiction  in  both  criminal  and  civil  matters  shall  in  all  cases 
be  exercised  and  enforced  in  conformity  with  the  laws  of  the 
United  States,  which,  so  far  as  necessary  to  execute  the  treaty 
and  suitable  to  carry  it  into  effect,  are  extended  over  all  citizens 
of  the  United  States  in  Japan,  and  over  all  others  there  to  the 
extent  that  the  terms  of  the  treaty  justify  or  require.  It  also 
provides  that  where  such  laws  are  not  adapted  to  the  object,  or 
are  deficient  in  the  provisions  necessary  to  furnish  suitable  rem- 
edies, the  common  law  and  the  law  of  equity  and  admiralty  shall 
be  extended  in  like  manner  over  such  citizens  and  others;  and 
that  if  neither  the  common  law,  nor  the  law  of  equity,  or  ad- 
miralty, nor  the  statutes  of  the  United  States,  furnish  appro- 
priate and  sufficient  remedies,  the  minister  shall,  by  decrees  and 
regulations,  which  shall  have  the  force  of  law,  supply  such  de- 
fects and  deficiencies.  Each  of  the  consuls  is  authorized,  upon 
facts  within  his  own  knowledge,  or  which  he  has  good  reason 
to  believe  true,  or  upon  complaint  made  or  information  filed 
in  writing  and  authenticated  in  such  way  as  shall  be  prescribed 


IN  RE  ROSS.  271 

by  the  minister,  to  issue  his  warrant  for  the  arrest  of  any  citi- 
zen of  the  United  States  charged  with  committing  in  the  country 
an  offence  against  law;  and  to  arraign  and  try  such  offender; 
and  to  sentence  him  to  punishment  in  the  manner  therein  pre- 
scribed. 

The  legislation  also  declares  that  insurrection  or  rebellion 
against  the  government,  with  intent  to  subvert  the  same,  and 
murder,  shall  be  punishable  with  death,  but  that  no  person 
shall  be  convicted  thereof  unless  the  consul  and  his  associates 
in  the  trial  all  concur  in  the  opinion,  and  the  minister  approves 
of  the  conviction.  It  also  provides  that  whenever  in  any  case 
the  consul  is  of  opinion  that,  by  reason  of  the  legal  questions 
which  may  arise  therein,  assistance  will  be  useful  to  him,  or  that 
a  severer  punishment  than  previously,  specified  in  certain  cases 
will  be  required,  he  shall  summon  to  sit  with  him  on  the  trial 
one  or  more  citizens  of  the  United  States,  not  exceeding  four, 
and  in  capital  cases  not  less  than  four,  who  shall  be  taken  by 
lot  from  a  list  which  has  been  previously  submitted  to  and  ap- 
proved by  the  minister,  and  shall  be  persons  of  good  repute  and 
competent  for  the  duty. 

The  jurisdiction  of  the  consular  tribunal,  as  is  thus  seen,  is 
to  be  exercised  and  enforced  in  accordance  with  the  laws  of  the 
United  States;  and  of  course  in  pursuance  of  them  the  accused 
will  have  an  opportunity  of  examining  the  complaint  against 
him,  or  will  be  presented  with  a  copy  stating  the  offence  he  has 
committed,  will  be  entitled  to  be  confronted  with  the  witnesses 
against  him  and  to  cross-examine  them,  and  to  have  the  benefit 
of  counsel;  and,  indeed,  will  have  the  benefit  of  all  the  provi- 
sions necessary  to  secure  a  fair  trial  before  the  consul  and  his 
associates.  The  only  complaint  of  this  legislation  made  by  coun- 
sel is  that,  in  directing  the  trial  to  be  had  before  the  consul  and 
associates  summoned  to  sit  with  him,  it  does  not  require  a  pre- 
vious presentment  or  indictment  by  a  grand  jury,  and  does  not 
give  to  the  accused  a  petit  jury.  The  want  of  such  clauses,  as 
affecting  the  validity  of  the  legislation,  we  have  already  consid- 
ered. It  is  not  pretended  that  the  prisoner  did  not  have,  in 
other  respects,  a  fair  trial  in  the  Consular  Court. 

It  is  further  objected  to  the  proceedings  in  the  Consular 
Court  that  the  offence  with  which  the  petitioner  was  charged, 
having  been  committed  on  board  of  a  vessel  of  the  United  States 
in  Japanese  waters,  was  not  triable  before  the  Consular  Court ; 
and  that  the  petitioner,  being  a  subject  of  Great  Britain,  was 


272  EXEMPTIONS  FROM  JURISDICTION. 

• 

not  within  the  jurisdiction  of  that  court.    These  objections  we 
will  now  proceed  to  consider. 

The  argument  presented  in  support  of  the  first  of  these  posi- 
tions is  briefly  this.  Congress  has  provided  for  the  punishment 
of  murder  committed  upon  the  high  seas,  or  any  arm  or  bay 
of  the  sea  within  the  admiralty  and  maritime  jurisdiction  of  the 
United  States,  and  out  of  the  jurisdiction  of  any  particular 
State ;  and  has  provided  that  the  trial  of  all  offences  committed 
upon  the  high  seas,  out  of  the  jurisdiction  of  any  particular 
State,  shall  be  in  the  district  where  the  offender  is  found  or 
into  which  he  is  first  brought.  The  term  "high  seas"  includes 
waters  on  the  sea  coast  without  the  boundaries  of  low-water 
mark ;  and  the  waters  of  the  port  of  Yokohama  constitute,  with- 
in the  meaning  of  the  statute,  high  seas.  Therefore  it  is  con- 
tended that,  although  the  ship  Bullion  was  at  the  time  lying 
in  those  waters,  the  offence  for  which  the  appellant  was  tried 
and  convicted  was  committed  on  the  high  seas  and  within  the 
jurisdiction  of  the  domestic  tribunals  of  the  United  States,  and 
is  not  punishable  elsewhere.  In  support  of  this  position  it  is 
assumed  that  the  jurisdiction  of  the  Consular  Court  is  limited 
to  offences  committed  on  land,  within  the  territory  of  Japan, 
to  the  exclusion  of  offences  committed  on  waters  within  that 
territory. 

There  is,  as  it  seems  to  us,  an  obvious  answer  to  this  argu- 
ment. The  jurisdiction  to  try  offences  committed  on  the  high 
seas  in  the  district  where  the  offender  may  be  found,  or  into 
which  he  may  be  first  brought,  is  not  exclusive  of  the  jurisdiction 
of  the  consular  tribunal  to  try  a  similar  offence  when  committed 
in  a  port  of  a  foreign  country  in  which  that  tribunal  is  estab- 
lished, and  the  offender  is  not  taken  to  the  United  States.  There 
is  no  law  of  Congress  compelling  the  master  of  a  vessel  to  carry 
or  transport  him  to  any  home  port  when  he  can  be  turned  over 
to  a  consular  court  having  jurisdiction  of  similar  offences  com- 
mitted in  the  foreign  country.  7  Opinions  Attys.-Gen.  722. 
The  provisions  conferring  jurisdiction  in  capital  cases  upon  the 
consuls  in  Japan,  when  the  offence  is  committed  in  that  country, 
are  embodied  in  the  Revised  Statutes,  with  the  provisions  as 
to  the  jurisdiction  of  domestic  tribunals  over  such  offences  com- 
mitted on  the  high  seas;  and  those  statutes  were  re-enacted 
together,  and,  as  re-enacted,  went  into  operation  at  the  same 
time.  To  both  effect  must  be  given  in  proper  cases,  where  they 
are  applicable.  We  do  not  adopt  the  limitation  stated  by  counsel 


IN  RE  ROSS.  273 

to  the  jurisdiction  of  the  consular  tribunal,  that  it  extends  only 
to  offences  committed  on  land.  Neither  the  treaty  nor  the 
Revised  Statutes  to  carry  them  into  effect  contain  any  such 
limitation.  The  latter  speak  of  offences  committed  in  the  coun- 
try of  Japan — meaning  within  the  territorial  jurisdiction  of 
that  country — which  includes  its  ports  and  navigable  waters 
as  well  as  its  lands. 

The  position  that  the  petitioner,  being  a  subject  of  Great 
Britain,  was  not  within  the  jurisdiction  of  the  Consular  Court, 
is  more  plausible,  but  admits,  we  think,  of  a  sufficient  answer. 
The  national  character  of  the  petitioner,  for  all  the  purposes 
of  the  consular  jurisdiction,  was  determinable  by  his  enlistment 
as  one  of  the  crew  of  the  American  ship  Bullion.  By  such 
enlistment  he  becomes  an  American  seaman — one  of  an  Amer- 
ican crew  on  board  of  an  American  vessel — and  as  such  entitled 
to  the  protection  and  benefits  of  all  the  laws  passed  by  Congress 
on  behalf  of  American  seamen,  and  subject  to  all  their  obliga- 
tions and  liabilities.  Although  his  relations  to  the  British  Gov- 
ernment are  not  so  changed  that,  after  the  expiration  of  his 
enlistment  on  board  of  the  American  ship,  that  government  may 
not  enforce  his  obligation  of  allegiance,  and  he  on  the  other 
hand  may  not  be  entitled  to  invoke  its  protection  as  a  British 
subject,  that  relation  was  changed  during  his  service  of  seaman 
on  board  of  the  American  ship  under  his  enlistment.  He  could 
then  insist  upon  treatment  as  an  American  seaman,  and  invoke 
for  his  protection  all  the  power  of  the  United  States  which  could 
be  called  into  exercise  for  the  protection  of  seamen  who  were 
native  born.  He  owes  for  that  time  to  the  country  to  which 
the  ship  on  which  he  is  serving  belongs,  a  temporary  allegiance ; 
and  must  be  held  to  all  its  responsibilities.  The  question  has 
been  treated  more  as  a  political  one  for  diplomatic  adjustment, 
than  as  a  legal  one  to  be  determined  by  the  judicial  tribunals, 
and  has  been  the  subject  of  correspondence  between  our  gov- 
ernment and  that  of  Great  Britain. 

The  position  taken  by  our  government  is  expressed  in  a  com- 
munication from  the  Secretary  of  State,  to  the  British  govern- 
ment, under  date  of  June  16,  1881.  It  was  the  assertion  of  a 
principle  which  the  Secretary  insisted  "as  in  entire  conformity 
with  the  principles  of  English  law  as  applied  to  a  mercantile 
service  almost  identical  with  our  own  in  its  organization  and 
regulation.  That  principle  is  that,  when  a  foreigner  enters  the 
mercantile  marine  of  any  nation  and  becomes  one  of  the  crew 


274  EXEMPTIONS  FROM  JURISDICTION. 

of  a  vessel  having  undoubtedly  a  national  character,  he  assumes 
a  temporary  allegiance  to  the  flag  under  which  he  serves,  and  in 
return  for  the  protection  afforded  him.  becomes  subject  to  the 
laws  by  which  that  nation  in  the  exercise  of  an  unquestioned 
authority  governs  its  vessels  and  seamen.  If,  therefore,"  he 
continued,  "the  government  of  the  United  States  has  by  treaty 
stipulation  with  Japan  acquired  the  privilege  of  administering 
its  own  laws  upon  its  own  vessels  and  in  relation  to  its  own 
seamen  in  Japanese  territory,  then  every  American  vessel  and 
every  seaman  of  its  crew  are  subject  to  the  jurisdiction  which  by 
such  treaty  has  been  transferred  to  the  government  of  the 
United  States." 

"If  Ross  had  been  a  passenger  on  board  of  the  Bullion,  or  if, 
residing  in  Yokohama,  he  had  come  on  board  temporarily  and 
had  then  committed  the  murder,  the  question  of  jurisdiction 
would  have  been  very  different.  But,  as  it  was,  he  was  part  of 
the  crew,  a  duly  enrolled  seaman  under  American  laws,  enjoy- 
ing the  protection  of  this  government  to  such  an  extent  that 
he  could  have  been  protected  from  arrest  by  the  British  author- 
ities ;  and  his  subjection  to  the  laws  of  the  United  States  cannot 
be  avoided  just  at  the  moment  that  it  suits  his  convenience  to 
allege  foreign  citizenship.  The  law  which  he  violated  was  the 
law  made  by  the  United  States  for  the  government  of  United 
States  vessels ;  the  person  murdered  was  one  of  his  own  superior 
officers  whom  he  had  bound  himself  to  respect  and  obey,  and 
it  is  difficult  to  see  by  what  authority  the  British  government 
can  assume  the  duty  or  claim  the  right  to  vindicate  that  law 
or  protect  that  officer." 

"The  mercantile  service  is  certainly  a  national  service,  al- 
though not  quite  in  the  sense  in  which  that  term  would  be  ap- 
plied to  the  national  navy.  It  is  an  organized  service,  governed 
by  a  spe'cial  and  complex  system  of  law,  administered  by  na- 
tional officers,  such  as  collectors,  harbor  masters,  shipping  mas- 
ters and  consuls,  appointed  by  national  authority.  This  system 
of  law  attaches  to  the  vessel  and  crew  when  they  have  a  national 
port  and  accompanies  them  round  the  globe,  regulating  their 
lives,  protecting  their  persons  and  punishing  their  offences. 
The  sailor,  like  the  soldier  during  his  enlistment,  knows  no  other 
allegiance  than  to  the  country  under  whose  flag  he  serves.  This 
law  may  be  suspended  while  he  is  in  the  ports  of  a  foreign 
nation,  but  where  such  foreign  nation  grants  to  the  country 
which  he  serves  the  power  to  administer  its  own  laws  in  such 


IN  RE  ROSS.  275 

foreign  territory,  then  the  law  under  which  he  enlisted  again 
becomes  supreme." 

The  Secretary  concluded  his  communication  with  the  follow- 
ing expression  of  the  determination  of  our  government: 

"So  impressed  is  this  government  with  the  importance  and 
propriety  of  these  views,  that  while  it  will  receive  with  the  most 
respectful  consideration  the  expression  of  any  different  con- 
viction which  her  Britannic  Majesty's  government  may  entertain, 
it  will  yet  feel  bound  to  instruct  its  consular  and  diplomatic 
officers  in  the  East,  that  in  China  and  Japan  the  judicial  au- 
thority of  the  consuls  of  the  United  States  will  be  considered 
as  extending  over  all  persons  duly  shipped  and  enrolled  upon 
the  articles  of  any  merchant  vessel  of  the  United  States,  what- 
ever be  the  nationality  of  such  person.  And  all  offences  which 
would  be  justiciable  by  the  consular  courts  of  the  United  States, 
where  the  persons  so  offending  are  native  born  or  naturalized 
citizens  of  the  United  States,  employed  in  the  merchant  service 
thereof,  are  equally  justiciable  by  the  same  consular  courts  in 
the  case  of  seamen  of  foreign  nationality." 

The  determination  thus  expressed  was  afterwards  carried 
out  by  incorporating  the  doctrine  into  the  permanent  regula- 
tions of  the  department  for  the  guide  of  the  consuls  of  this 
country.  72d  regulation. 

The  views  thus  forcibly  expressed  present  in  our  judgment 
the  true  status  of  the  prisoner  while  an  enlisted  seaman  on  the 
American  vessel,  and  give  effect  to  the  purpose  of  the  treaty 
and  the  legislation  of  Congress.  The  treaty  uses  the  term 
"Americans"  in  speaking  of  those  who  may  be  brought  within 
the  jurisdiction  of  the  Consular  Court  for  offences  committed  in 
Japan.  The  statute  designates  them  as  "citizens  of  the  United 
States,"  and  yet  extends  the  laws  of  the  United  States,  so  far 
as  they  may  be  necessary  to  execute  the  treaty  and  are  suitable 
to  carry  tlie  same  into  effect,  not  only  over  all  citizens  of  the 
United  States  in  Japan,  but  also  over  "all  others  to  the  extent 
that  the  terms  of  the  treaty  justify  or  require." 

Reading  the  treaty  and  statute  together  in  view  of  the  purpose 
designed  to  be  accomplished,  we  are  satisfied  that  it  was  in- 
tended by  them  to  bring  within  our  laws  all  who  are  citizens, 
and  also  all  who,  though  not  strictly  citizens,  are  by  their  serv- 
ice equally  entitled  to  the  care  and  protection  of  the  govern- 
ment. It  is  a  canon  of  interpretation  to  so  construe  a  law  or  a 
treaty  as  to  give  effect  to  the  object  designed,  and  for  that  pur- 


276  EXEMPTIONS  FROM  JURISDICTION. 

pose  all  of  its  provisions  must  be  examined  in  the  light  of  at- 
tendant and  surrounding  circumstances.  To  some  terms  and 
expressions  a  literal  meaning  will  be  given,  and  to  others  a  larger 
and  more  extended  one.  The  reports  of  adjudged  cases  and 
approved  legal  treatises  are  full  of  illustrations  of  the  applica- 
tion of  this  rule.  The  inquiry  in  all  such  cases  is  as  to  what 
was  intended  in  the  law  by  the  legislature,  and  in  the  treaty 
by  the  contracting  parties.  .  .  . 

The  views  expressed  by  the  Department  of  State,  quoted 
above,  are  in  harmony  with  the  doctrine  uniformly  asserted 
by  our  government  against  the  claim  by  England  of  a  right  to 
take  its  countrymen  from  the  deck  of  an  American  merchant 
vessel  and  press  them  into  its  naval  service.  It  is  a  part  of  our 
history  that  the  assertion  of  this  claim,  and  its  enforcement  in 
many  instances,  caused  a  degree  of  irritation  among  our  people 
which  no  conduct  of  any  other  country  has  ever  produced.  Its 
enforcement  was  deemed  a  great  indignity  upon  this  country 
and  a  violation  of  our  right  of  sovereignty,  our  vessels  being 
considered  as  parts  of  our  territory.  It  led  to  the  war  of  1812, 
and  although  that  war  closed  without  obtaining  a  relinquish- 
ment  of  the  claim,  its  further  assertion  was  not  attempted.  At 
last,  in  a  communication  by  Mr.  Webster,  then  Secretary  of 
State,  to  Lord  Ashburton,  the  special  British  minister  to  this 
country,  on  the  8th  of  August,  1842,  the  claim  was  repudiated, 
and  the  announcement  made  that  it  would  no  longer  be  allowed 
by  our  government  and  must  be  abandoned.  The  conclusion 
of  Mr.  Webster's  communication  bears  upon  the  question  be- 
fore us.  After  referring  to  the  claim  of  Great  Britain,  and 
demonstrating  the  injustice  of  the  position  and  its  violation  of 
national  rights,  he  said:  "In  the  early  disputes  between  the 
two  governments,  on  this  so  long-contested  topic,  the  distin- 
guished person  to  whose  hands  were  first  intrusted  the  seals 
of  this  department  declared,  that  'the  simplest  rule  will  be, 
that  the  vessel  being  American  shall  be  evidence  that  the  sea- 
men on  board  are  such. '  Fifty  years '  experience,  the  utter  fail- 
ure of  many  negotiations,  and  a  careful  reconsideration  now 
had  of  the  whole  subject  at  a  moment  when  the  passions  are 
laid,  and  no  present  interest  or  emergency  exists  to  bias  the 
judgment,  have  convinced  this  government  that  this  is  not  only 
the  simplest  and  best,  but  the  only  rule  which  can  be  adopted 
and  observed  consistently  with  the  rights  and  honor  of  the 
United  States,  and  the  security  of  their  citizens.  That  rule 


IN  RE  ROSS.  277 

announces,  therefore,  what  will  hereafter  be  the  principle  main- 
tained by  their  government.  In  every  regularly  documented 
American  merchant  vessel,  the  crew  who  navigate  it  will  find 
their  protection  in  the  flag  which  is  over  them."  Webster's 
Works,  Vol.  VI,  p.  325. 

This  rule,  that  the  vessel  being  American  is  evidence  that 
the  seamen  on  board  are  such,  is  now  an  established  doctrine  of 
this  country;  and  in  support  of  it  there  is  with  the  American 
people  no  diversity  of  opinion  and  can  be  no  division  of  action. 

We  are  satisfied  that  the  true  rule  of  construction  in  the 
present  case  was  adopted  by  the  Department  of  State  in  the 
correspondence  with  the  English  government,  and  that  the  ac- 
tion of  the  consular  tribunal  in  taking  jurisdiction  of  the  pris- 
oner Ross,  though  an  English  subject,  for  the  offence  com- 
mitted, was  authorized.  While  he  was  an  enlisted  seaman  on 
the  American  vessel,  which  floated  the  American  flag,  he  was, 
within  the  meaning  of  the  statute  and  the  treaty,  an  American, 
under  the  protection  and  subject  to  the  laws  of  the  United  States 
equally  with  the  seaman  who  was  native  born.  As  an  American 
seaman  he  could  have  demanded  a  trial  before  the  Consular 
Court  as  a  matter  of  right,  and  must  therefore  be  held  subject 
to  it  as  a  matter  of  obligation.  .  .  . 

It  is  true  that  the  occasion  for  consular  tribunals  in  Japan 
may  hereafter  be  less  than  at  present,  as  every  year  that  coun- 
try progresses  in  civilization  and  in  the  assimilation  of  its  sys- 
tem of  judicial  procedure  to  that  of  Christian  countries,  as 
well  as  in  the  improvement  of  its  penal  statutes;  but  the  sys- 
tem of  consular  tribunals  which  have  a  general  similarity  in 
their  main  provisions,  is  of  the  highest  importance,  and  their 
establishment  in  other  than  Christian  countries,  where  our  peo- 
ple may  desire  to  go  in  pursuit  of  commerce,  will  often  be 
essential  for  the  protection  of  their  persons  and  property. 

We  have  not  considered  the  objection  to  the  discharge  of  the 
prisoner  on  the  ground  that  he  accepted  the  conditional  pardon 
of  the  President.  If  his  conviction  and  sentence  were  void  for 
want  of  jurisdiction  in  the  consular  tribunal,  it  may  be  doubtful 
whether  he  was  estopped,  by  his  acceptance  of  the  pardon, 
from  assailing  their  validity;  but  into  that  inquiry  we  need  not 
go,  for  the  Consular  Court  having  had  jurisdiction  to  try  and 
sentence  him,  there  can  be  no  question  as  to  the  binding  force 
of  the  acceptance. 

Order  affirmed. 


278  EXEMPTIONS  FROM  JURISDICTION. 

NOTE. — The  organ  through  which  states  most  commonly  exercise 
their  rights  of  jurisdiction  in  other  countries  is  the  consul.  The 
functions  of  this  officer  have  had  a  curious  development  which  has 
been  much  misrepresented,  especially  in  important  judicial  decisions 
concerning  his  powers.  Until  late  in  the  Middle  Ages  law  was  thought 
of  as  personal  rather  than  territorial.  Wherever  men  went,  their 
system  of  law,  like  their  citizenship  or  allegiance,  went  with  them. 
In  consequence,  when  European  merchants  established  themselves 
in  the  Levant  and  asked  the  consent  of  the  local  sovereign  to  appoint 
for  themselves  judges  who  would  settle  their  controversies  according 
to  their  own  laws,  the  arrangement  seemed  entirely  natural  to  both 
parties.  The  judge  thus  appointed  by  the  merchants  was  usually 
called  a  consul.  As  early  as  1060  the  Greek  emperor  at  Constan- 
tinople accorded  this  right  to  the  Venetian  merchants.  In  1199,  the 
Emperor  Alexis  III  by  his  Bulla  Aurea  gave  to  the  Venetian  consuls 
the  extraordinary  right  of  deciding  controversies  not  only  between 
Venetians  but  also  between  Venetians  and  his  own  subjects.  Such 
arrangements  were  not  confined  to  the  Levant.  The  Crusades  were 
followed  by  an  enormous  expansion  of  commerce,  and  the  Italian 
merchants  who  established  themselves  along  the  Baltic,  in  the  Nether- 
lands and  in  London,  appointed  consuls  who  exercised  both  a  civil 
and  a  criminal  jurisdiction.  When  their  interests  required  it,  the 
merchants  of  other  countries  adopted  the  same  system,  and  in  the 
fifteenth  century  English  consuls  who  acted  as  judges  were  estab- 
lished in  Sweden,  Norway,  Denmark,  the  Netherlands  and  Italy.  As 
the  city  state  of  the  Middle  Ages  declined  and  the  new  kingdoms  grew 
up  two  changes  took  place  which  revolutionized  the  office  of  consul. 
Law  came  to  be  looked  upon  as  territorial  rather  than  personal,  and 
the  consuls  came  to  be  government  officials  chosen  by  their  govern- 
ments and  not  by  the  merchants  over  whom  they  were  to  exercise 
jurisdiction.  In  consequence  of  the  placing  of  law  upon  a  territorial 
basis,  states  looked  upon  the  presence  of  alien  tribunals  in  their 
midst  as  in  derogation  of  their  dignity  and  an  impairment  of  their 
sovereignty.  Hence  the  consul  was  deprived  of  his  judicial  character 
in  all  countries  except  those  in  which  there  was  some  special  reason 
for  maintaining  it.  At  first  all  the  countries  where  such  a  jurisdic- 
tion was  retained  were  Mohammedan  states,  and  their  view  that  the 
blessings  of  Moslem  jurisprudence  were  not  for  infidels  assisted  the 
states  of  Europe  to  retain  their  consular  jurisdiction  in  the  lands 
of  the  Prophet.  Their  jurisdiction  at  first  rested  on  nothing  more 
substantial  than  the  tacit  acquiescence  of  the  Mohammedan  princes, 
but  In  the  case  of  Turkey  it  was  explicitly  confirmed  and  to  some 
extent  defined  in  a  series  of  treaties  dating  from  the  sixteenth  cen- 
tury known  as  the  Capitulations.  The  preponderant  position  of 
France  in  the  Ottoman  dominions  led  citizens  of  other  countries  to 
place  themselves  under  French  protection,  and  even  as  late  as  1830, 
when  the  United  States  made  a  treaty  with  Turkey,  it  was  provided 
that  the  privileges  therein  described  should  be  exercised  according  to 
the  usage  observed  towards  other  Franks. 

In  all  countries  where  the  principle  of  exterritoriality  has  been 
applied  in  recent  years,  except  only  Turkey,  the  jurisdiction  claimed 


NOTE.  279 

was  the  subject  of  an  express  grant  by  treaty.  All  such  grants  were 
made  after  the  conception  of  law  as  territorial  had  been  fully  ac- 
cepted by  all  members  of  the  family  of  nations,  and  were  therefore 
admittedly  in  derogation  of  the  sovereignty  of  the  states  making  the 
grant.  Since  a  consul  in  such  countries  may  exercise  only  that  juris- 
diction which  the  treaty  confers,  he  is  found  in  practice  to  have  a 
much  narrower  Jurisdiction  than  do  the  consuls  in  Turkey,  many  of 
whose  powers  are  derived  only  from  ancient  use.  In  China,  the 
United  States  exercises  jurisdiction  not  only  through  its  consuls,  but 
at  Shanghai,  it  has  established  the  United  States  Court  For  its 
powers  and  functions  see  Swayne  &  Hoyt  v.  Everett  (1919),  255  Fed. 
71,  and  Lobingier,  Extraterritorial  Cases. 

In  addition  to  the  exercise  of  extraterritorial  jurisdiction  in  such 
countries  as  Turkey,  China  and  Morocco,  the  United  States  frequently 
extends  a  limited  diplomatic  protection  over  certain  persons  who  are 
not  American  citizens  and  even  over  certain  classes  of  natives.  For- 
eigners who  have  no  diplomatic  or  consular  representative  to  whom 
they  can  appeal  often  ask  for  the  good  offices  of  the  representatives 
of  some  western  government.  The  necessity  of  providing  for  the 
protection  of  certain  classes  of  natives  has  given  rise  to  the  prot&gS 
system.  The  classes  protected  vary  in  different  countries.  The  sys- 
tem has  been  so  much  abused  that  the  privilege  of  protection  is  now 
severely  restricted  and  is  usually  confined  to  the  translators,  guards 
and  other  servants  of  diplomatic  and  consular  representatives  and 
the  employees  of  foreign  merchants.  Some  European  governments 
also  extend  their  protection  to  the  native  converts  to  Christianity, 
but  the  United  States  only  stipulates  in  its  treaties  with  Turkey  and 
China  that  there  shall  be  no  discrimination  against  native  Christians. 
See  Borchard,  sees.  202,  203. 

Consular  jurisdiction  may  be  terminated  (1)  by  treaty,  as  in  the 
case  of  Japan;  (2)  by  the  leasing  of  the  districts  concerned,  as  in 
the  case  of  Port  Arthur,  Wei-hai-Wei  and  Kiao-Chau  in  China, 
which  were  leased  respectively  by  Russia,  Great  Britain  and  Ger- 
many; (3)  by  the  establishment  of  a  protectorate  over  the  coun- 
try concerned  such  as  the  French  protectorate  over  Morocco;  (4) 
by  annexation,  as  in  the  case  of  the  annexation  of  Madagascar  by 
France  and  of  Tripoli  by  Italy. 

The  countries  in  which  the  question  of  consular  jurisdiction  is  now 
of  most  importance  are  Turkey,  China  and  Persia.  In  1914  Turkey 
gave  notice  of  its  intention  to  terminate  the  Capitulations,  but  the 
states  concerned  declined  to  acquiesce.  When  the  United  States  in 
1922  recognized  the  independence  of  Egypt,  it  expressly  reserved  its 
rights  therein  under  the  Capitulations. 

While  the  law  applied  in  a  consular  court  is  the  law  of  the  consul's 
country,  it  is  applied  to  the  settlement  of  the  instant  case  because  it 
has  been  adopted  for  cases  of  that  kind  by  the  territorial  sovereign 
and  hence  becomes  his  law,  Imperial  Japanese  Government  v.  P.  & 
O.  Co.  (1895),  L.  R.  [1895]  A.  C.  644;  Secretary  of  State  v.  Charles- 
worth  (1900),  L.  R.  [1901]  A.  C.  373.  The  question  of  exterritoriality 
is  discussed  from  the  standpoint  of  trad*  domicile  in  Th«  Eumaeus 


280  EXEMPTIONS  FROM  JURISDICTION. 

(1915),  1  Br.  &  Col.  P.  C.  605.  A  foreign  consul  may  not  set  up  a 
court  in  the  United  States  without  express  authority  from  the  Amer- 
ican Government  so  to  do,  Glass  v.  The  Betsey  (1794),  3  Dallas,  6. 
Other  important  cases  dealing  with  the  general  subject  are  The 
Indian  Chief  (1880),  3  C.  Robinson,  12;  Dainese  v.  Hale  (1875),  91 
U.  S.  13.  The  provisions  in  the  treaties  made  by  the  United  States 
are  collected  in  Moore,  Extradition,  I,  100,  n.  5.  See  also  Angell, 
"The  Turkish  Capitulations,"  Annual  Report  of  the  American  His- 
torical Association  for  1900,  I,  513;  Nys,  "La.  Juridiction  Consulaire," 
Revue  de  Droit  International,  2nd  series,  VII,  237;  Rey,  La  Protection 
Diplomatique  et  Consulaire  dans  les  EcheUes  de  Levant  et  de  Bar- 
baric; Willoughby,  Foreign  Rights  and  Interests  in  China;  Tyau, 
The  Legal  Obligations  Arising  out  of  Treaty  Relations  between  China 
and  Other  States,  and  "Exterritoriality  in  China  and  the  Question  of 
its  Abolition,"  British  Year  Book  of  International  Law,  1921-22,  133; 
MacMurray,  Treaties  and  Agreements  with  and  concerning  China,  1894- 
1919;  J.  C.  Bancroft  Davis'  notes  to  Treaties  and  Conventions  between 
the  United  States  and  Other  Powers,  m6-1887;  Borchard,  sec.  180, 
202;  Brown,  Foreigners  in  Turkey;  Hall,  The  Foreign  Powers  and 
Jurisdiction  of  the  British  Crown;  Jenkyns,  British  Rule  and  Juris- 
diction beyond  the  Seas;  Hinckley,  American  Consular  Jurisdiction 
in  the  Orient;  Hishida,  The  International  Position  of  Japan  as  a 
Great  Power;  Dr.  Wellington  Koo,  The  Status  of  Aliens  in  China; 
Hyde,  I,  448;  Moore,  Digest,  II,  593  seq.  The  meaning  and  use  of  the 
terms  "exterritorial"  and  "extraterritorial"  are  discussed  In  Bonflls 
(Fauchille),  sec.  333,  and  Piggott,  Exterritoriality,  7.  The  latter  Is  the 
best  single  volume  on  the  subject  with  which  it  deals. 


HI 


CHAPTEE  VIII. 
THE  ACQUISITION  AND  TRANSFER  OF  JURISDICTION. 

SECTION  1.    THE  ACQUISITION  OP  JURISDICTION  BY  DISCOVERY  AND 

OCCUPATION. 

JOHNSON  AND  GRAHAM'S  LESSEE  v.  WILLIAM 
M'INTOSH. 

SUPREME  COURT  OF  THE  UNITED  STATES.    1823. 
8  Wheaton,  543. 

Error  to  the  District  Court  of  Illinois. 

This  was  an  action  of  ejectment  for  lands  in  the  State  and 
District  of  Illinois,  claimed  by  the  plaintiffs  under  a  purchase 
and  conveyance  from  the  Piankeshaw  Indians,  and  by  the  de- 
fendant, under  a  grant  from  the  United  States.  It  came  up 
upon  a  case  stated,  upon  which  there  was  a  judgment  below 
for  the  defendant.  .  .  . 

Mr.  Chief  Justice  MARSHALL  delivered  the  opinion  of  the 
Court. 

The  plaintiffs  in  this  cause  claim  the  land,  in  their  declaration 
mentioned,  under  two  grants,  purporting  to  be  made,  the  first 
in  1773,  and  the  last  in  1775,  by  the  chiefs  of  certain  Indian 
tribes,  constituting  the  Illinois  and  the  Piankeshaw  nations ; 
and  the  question  is,  whether  this  title  can  be  recognized  in  the 
Courts  of  the  United  States? 

The  facts,  as  stated  in  the  case  argued,  show  the  authority  of 
the  chiefs  who  executed  this  conveyance,  so  far  as  it  could  be 
given  by  their  own  people ;  and  likewise  show,  that  the  particu- 
lar tribes  for  whom  these  chiefs  acted  were  in  rightful  posses- 
sion of  the  land  they  sold.  The  inquiry,  therefore,  is,  in  a  great 
measure,  confined  to  the  power  of  Indians  to  give,  and  of  pri- 

281 


282  ACQUISITION  AND  TRANSFER  OP  JURISDICTION. 

vate  individuals  to  receive,  a  title  which  can  be  sustained  in  the 
Courts  of  this  country. 

As  the  right  of  society,  to  prescribe  those  rules  by  which 
property  may  be  acquired  and  preserved  is  not,  and  cannot  be 
drawn  into  question;  as  the  title  to  lands,  especially,  is  and 
must  be  admitted  to  depend  entirely  upon  the  law  of  the  nation 
in  which  they  lie ;  it  will  be  necessary,  in  pursuing  this  inquiry, 
to  examine,  not  singly  those  principles  of  abstract  justice,  which 
the  Creator  of  all  things  has  impressed  on  the  mind  of  his 
creature  man,  and  which  are  admitted  to  regulate,  in  a  great 
degree,  the  rights  of  civilized  nations,  whose  independence  is 
acknowledged ;  but  those  principles  also  which  our  own  govern- 
ment has  adopted  in  the  particular  case,  and  given  us  as  the 
rule  for  our  decision. 

On  the  discovery  of  this  immense  continent,  the  nations  of 
Europe  were  eager  to  appropriate  to  themselves  so  much  of  it 
as  they  could  respectively  acquire.  Its  vast  extent  offered  an 
ample  field  to  the  ambition  and  enterprise  of  all;  and  the  char- 
acter and  religion  of  its  inhabitants  afforded  an  apology  for 
considering  them  as  a  people  over  whom  the  superior  genius  of 
Europe  might  claim  an  ascendency.  The  potentates  of  the  old 
world  found  no  difficulty  in  convincing  themselves  that  they 
made  ample  compensation  to  the  inhabitants  of  the  new,  by 
bestowing  on  them  civilization  and  Christianity,  in  exchange 
for  unlimited  independence.  But,  as  they  were  all  in  pursuit 
of  nearly  the  same  object,  it  was  necessary,  in  order  to  avoid 
conflicting  settlements,  and  consequent  war  with  each  other, 
to  establish  a  principle,  which  all  should  acknowledge  as  the 
law  by  which  the  right  of  acquisition,  which  they  all  asserted, 
should  be  regulated  as  between  themselves.  This  principle  was, 
that  discovery  gave  title  to  the  government  by  whose  subjects,  or 
by  whose  authority,  it  was  made,  against  all  other  European 
governments,  which  title  might  be  consummated  by  possession. 

The  exclusion  of  all  other  Europeans,  necessarily  gave  to  the 
nation  making  the  discovery  the  sole  right  of  acquiring  the  soil 
from  the  natives,  and  establishing  settlements  upon  it.  It  was  a 
right  with  which  no  Europeans  could  interfere.  It  was  a  right 
which  all  asserted  for  themselves,  and  to  the  assertion  of  which, 
by  others,  all  assented. 

Those  relations  which  were  to  exist  between  the  discoverer  and 
the  natives,  were  to  be  regulated  by  themselves.  The  rights  thus 


JOHNSON  AND  GRAHAM'S  LESSEE  v.  M'NTOSH.  283 

acquired  being  exclusive,  no  other  power  could  interpose  be- 
tween them. 

In  the  establishment  of  these  relations,  the  rights  of  the 
original  inhabitants  were,  in  no  instance,  entirely  disregarded; 
but  were  necessarily,  to  a  considerable  extent,  impaired.  They 
were  admitted  to  be  the  rightful  occupants  of  the  soil,  with  a 
legal  as  well  as  just  claim  to  retain  possession  of  it,  and  to  use 
it  according  to  their  own  discretion ;  but  their  rights  to  complete 
sovereignty,  as  independent  nations,  were  necessarily  dimin- 
ished, and  their  power  to  dispose  of  the  soil  at  their  own  will, 
to  whomsoever  they  pleased,  was  denied  by  the  original  funda- 
mental principle,  that  discovery  gave  exclusive  title  to  those 
who  made  it. 

While  the  different  nations  of  Europe  respected  the  right  of 
the  natives,  as  occupants,  they  asserted  the  ultimate  dominion 
to  be  in  themselves ;  and  claimed  and  exercised,  as  a  consequence 
of  this  ultimate  dominion,  a  power  to  grant  the  soil,  while  yet 
in  possession  of  the  natives.  These  grants  have  been  understood 
by  all  to  convey  a  title  to  the  grantees,  subject  only  to  the  Indian 
right  of  occupancy. 

The  history  of  America,  from  its  discovery  to  the  present  day, 
proves,  we  think,  the  universal  recognition  of  these  principles. 

Spain  did  not  rest  her  title  solely  on  the  grant  of  the  Pope. 
Her  discussions  respecting  boundary,  with  France,  with  Great 
Britain,  and  with  the  United  States,  all  show  that  she  placed  it 
on  the  rights  given  by  discovery.  Portugal  sustained  her  claim 
to  the  Brazils  by  the  same  title. 

France,  also,  founded  her  title  to  the  vast  territories  she 
claimed  in  America  on  discovery.  However  conciliatory  her 
conduct  to  the  natives  may  have  been,  she  still  asserted  her  right 
of  dominion  over  a  great  extent  of  country  not  actually  settled 
by  Frenchmen,  and  her  exclusive  right  to  acquire  and  dispose  of 
the  soil  which  remained  in  the  occupation  of  Indians.  .  .  . 

The  States  of  Holland  also  made  acquisitions  in  America,  and 
sustained  their  right  on  the  common  principle  adopted  by  all 
Europe.  .  .  . 

No  one  of  the  powers  of  Europe  gave  its  full  assent  to  this 
principle,  more  unequivocally  than  England.  The  documents 
upon  this  subject  are  ample  and  complete.  So  early  as  the  year 
1496,  her  monarch  granted  a  commission  to  the  Cabots,  to  dis- 
cover countries  then  unknown  to  Christian  people,  and  to  take 
possession  of  them  in  the  name  of  the  king  of  England.  Two 


284  ACQUISITION  AND  TRANSFER  OF  JURISDICTION. 

years  afterwards,  Cabot  proceeded  on  this  voyage,  and  discov- 
ered the  continent  of  North  America,  along  which  he  sailed  as 
far  south  as  Virginia.  To  this  discovery  the  English  trace  their 
title. 

In  this  first  effort  made  by  the  English  government  to  acquire 
territory  on  the  continent,  we  perceive  a  complete  recognition  of 
the  principle  which  has  been  mentioned.  The  right  of  discovery 
given  by  this  commission  is  confined  to  countries  "then  un- 
known to  all  Christian  people;"  and  of  these  countries  Cabot 
was  empowered  to  take  possession  in  the  name  of  the  king  of 
England.  Thus  asserting  a  right  to  take  possession  notwith- 
standing the  occupancy  of  the  natives,  who  were  heathen,  and, 
at  the  same  time,  admitting  any  prior  title  of  any  Christian 
people  who  may  have  made  a  previous  discovery. 

Thus,  all  the  nations  of  Europe,  who  have  acquired  territory 
on  this  continent,  have  asserted  in  themselves  and  have  recog- 
nized in  others,  the  exclusive  right  of  the  discoverer  to  appro- 
priate the  lands  occupied  by  the  Indians.  .  .  . 

The  United  States  .  .  .  have  unequivocally  acceded  to 
that  great  and  broad  rule  by  which  its  civilized  inhabitants  now 
hold  this  country.  They  hold,  and  assert  in  themselves,  the  title 
by  which  it  was  acquired.  They  maintain,  as  all  others  have 
maintained,  that  discovery  gave  an  exclusive  right  to  extinguish 
the  Indian  title  of  occupancy,  either  by  purchase  or  by  conquest ; 
and  gave  also  a  right  to  such  a  degree  of  sovereignty,  as  the 
circumstances  of  the  people  would  allow  them  to  exercise. 

The  power  now  possessed  by  the  government  of  the  United 
States  to  grant  lands,  resided,  while  we  were  colonies,  in  the 
crown,  or  its  grantees.  The  validity  of  the  titles  given  by  either 
has  never  been  questioned  in  our  Courts.  It  has  been  exercised 
uniformly  over  territory  in  possession  of  the  Indians.  The 
existence  of  this  power  must  negative  the  existence  of  any  right 
which  may  conflict  with,  and  control  it.  An  absolute  title  to 
lands  cannot  exist,  at  the  same  time,  in  different  persons,  or  in 
different  governments.  An  absolute,  must  be  an  exclusive  title, 
or  at  least  a  title  which  excludes  all  others  not  compatible  with 
it.  All  our  institutions  recognize  the  absolute  title  of  the  crown, " 
subject  only  to  the  Indian  right  of  occupancy,  and  recognize  the 
absolute  title  of  the  crown  to  extinguish  that  right.  This  is 
incompatible  with  an  absolute  and  complete  title  in  the  Indians. 


NOTE.  285 

The  Court  is  decidedly  of  opinion  that  the  plaintiffs  do  not 
exhibit  a  title  which  can  be  sustained  in  the  Courts  of  the  United 
States;  and  that  there  is  no  error  in  the  judgment  which  was 
rendered  against  them  in  the  District  Court  of  Illinois. 

Judgment  affirmed,  with  costs. 

NOTE. — Mere  discovery  is  not  a  sufficient  basis  for  the  acquisition 
of  jurisdiction  over  territory.  It  must  be  followed  by  some  act  of 
appropriation  amounting  to  assertion  of  intent  to  hold  the  territory 
in  question.  Such  an  act  constitutes  occupation.  Lord  Stowell  held 
that  it  was  impossible  for  one  state  to  transfer  territory  to  another 
even  by  treaty,  unless  there  was  also  a  transfer  of  possession.  In  The 
Fama  (1S04),  5  C.  Robinson,  106,  114,  he  said: 

It  is  to  be  observed  then,  that  all  corporeal  property  de- 
pends very  much  upon  occupancy.  With  respect  to  the  origin 
of  property,  this  is  the  Sole  foundation,  Quad  nullius  eat 
ratione  naturali  occupanti  conceditur.  So  with  regard  to 
transfer  also,  it  is  universally  held  in  all  systems  of  juris- 
prudence, that  to  consummate  the  right  of  property,  a  person 
must  unite  the  right  of  the  thing  with  possession.  A  ques- 
tion has  been  made  indeed  by  some  writers,  whether  this 
necessity  proceeds  from  what  they  call  the  natural  law  of 
nations,  or  from  that  which  is  only  conventional.  Grotius 
seems  to  consider  it  as  proceeding  only  from  civil  institu- 
tions. Puffendorf  and  Pothier  go  farther.  All  concur,  how- 
ever, In  holding  it  to  be  a  necessary  principle  of  jurispru- 
dence, that  to  complete  the  right  of  property,  the  right  to 
the  thing  and  the  possession  of  the  thing  itself,  should  be 
united;  or  according  to  the  technical  expression,  borrowed 
either  from  the  civil  law,  or  as  Barbeyrac  explains  it,  from 
the  commentators  on  the  Canon  Law,  that  there  should  be 
both  the  jus  in  rem,  and  the  jus  in  re. — This  is  the  general 
law  of  property,  and  applies,  I  conceive,  no  less  to  the  right 
of  territory  than  to  other  rights.  Even  in  newly  discovered 
countries,  where  a  title  is  meant  to  be  established,  for  the 
first  time,  some  act  of  possession  is  usually  done  and  pro- 
claimed as  a  notification  of  the  fact.  In  transfer,  surely, 
where  the  former  rights  of  others  are  to  be  superseded,  and 
extinguished,  it  cannot  be  less  necessary  that  such  a  change 
should  be  indicated  by  some  public  acts,  that  all  who  are 
deeply  interested  In  the  event,  as  the  inhabitants  of  such 
settlements,  may  be  informed  under  whose  dominion,  and 
under  whose  laws  they  are  to  live.  This  I  conceive  to  be  the 
general  propriety  of  principle  on  the  subject,  and  no  less  ap- 
plicable to  cases  of  territory  than  to  property  of  every  other 
description. 

On  the  whole  subject  see  Westlake,  Collected  Papers,  158;  Hyde,  I, 
163;  Cobbett,  Coses  and  Opinions,  I,  110;  Moore,  Digest,  I,  258,  and 
Bonfils  (Fauchille),  sec.  536.  See  also  Martin  v.  Waddell  (1842), 


286  ACQUISITION  AND  TRANSFER  OF  JURISDICTION. 

16  Peters,  367;  Jones  v.  United  States,  (1890),  137  U.  S.  202;  Shively 
v.  Bowlby  (1894),  152  U.  S.  1;  Whiton  v.  Albany  Insurance  Co.  (1871), 
109  Mass.  24;  Mortimer  v.  New  York  Elevated  Ry.  (1889),  6  N.  Y. 
Supp.  898.  The  doctrine  of  acquisition  by  discovery  and  occupation 
was  involved  in  the  Oregon  controversy  between  Great  Britain  and 
the  United  States.  See  Twiss,  The  Oregon  Question;  Moore,  Int.  Art. 
I,  196;  Moore,  Digest,  I,  457;  V,  720.  It  was  also  involved  in  the 
Venezuela-British  Guiana  boundary  question.  See  Moore,  Digest,  VI, 
533. 


SECTION  2.    THE  ACQUISITION  OF  JURISDICTION  BY  PRESCRIPTION. 
STATE  OF  MARYLAND  v.  STATE  OF  WEST  VIRGINIA. 

STJPBEMI  COUBT  OF  THE  UNITED  STATES.    1910. 
217  U.  S.  1. 

Original.    In  Equity. 

MR.  JUSTICE  DAY  delivered  the  opinion  of  the  court.    .    .    . 

It  is  true  there  has  been  more  or  less  contention  as  to  the 
true  boundary  line  between  these  States.  Attempts  have  been 
made  to  settle  and  adjust  the  same,  some  of  which  we  have  re- 
ferred to,  and  the  details  of  which  may  be  found  in  the  very 
interesting  document  to  which  we  have  already  made  reference, 
the  report  of  the  committee  of  the  Maryland  Historical  Society. 
In  the  proposed  settlements,  for  many  years,  Virginia  and  West 
Virginia  have  consistently  adhered  to  the  Fairfax  Stone  as  a 
starting  point  for  the  disputed  boundary.  When  West  Virginia 
passed  the  act  of  1887,  ratifying  the  Michler  line,  it  was  upon 
condition  that  Virginia  titles  granted  between  the  Michler  line 
and  the  old  Maryland  line  should  be  validated.  Maryland,  in 
the  act  of  1852,  recognized  the  same  starting  point. 

And  the  fact  remains  that  after  the  Deakins  survey  in  1788 
the  people  living'  along  the  line  generally  regarded  that  line  as 
the  boundary  line  between  the  States  at  bar.  In  the  acts  of  the 
legislatures  of  the  two  States,  to  which  we  have  already  referred, 
resulting  in  the  survey  and  running  of  the  Michler  line,  it  is 
evident  from  the  language  used  that  the  purpose  was  not  to 
establish  a  new  line,  but  to  retrace  the  old  one,  and  we  arc 
strongly  inclined  to  believe  that  had  this  been  done  at  that  time 
the  controversy  would  have  been  settled. 


MARYLAND  v.  WEST  VIRGINIA.  287 

A  perusal  of  the  record  satisfies  us  that  for  many  years  occu- 
pation and  conveyance  of  the  lands  on  the  Virginia  side  has 
been  with  reference  to  the  Deakins  line  as  the  boundary  line. 
The  people  have  generally  accepted  it  and  have  adopted  it,  and 
the  facts  in  this  connection  cannot  be  ignored.  In  the  case  of 
Virginia  v.  Tennessee,  148  U.  S.  503,  522,  523,  Mr.  Justice  Field, 
speaking  for  the. court,  had  occasion  to  make  certain  comments 
which  are  pertinent  in  this  connection,  wherein  he  said : 

"Independently  of  any  effect  due  to  the  compact  as  such,  a 
boundary  line  between  States  or  provinces,  as  between  private 
persons,  which  has  been  run  out,  located  and  marked  upon  the 
earth,  and  afterwards  recognized  and  acquiesced  in  by  the 
parties  for  a  long  course  of  years,  is  conclusive,  even  if  it  be 
ascertained  that  it  varies  somewhat  from  the  courses  given  in 
the  original  grant;  and  the  line  so  established  takes  effect,  not 
as  an  alienation  of  territory,  but  as  a  definition  of  the  true  and 
ancient  boundary.  Lord  Hardwicke  in  Penn  v.  Lord  Baltimore, 

1  Vesey  Sen.  444,  448 ;  Boyd  v.  Graves,  4  Wheat.  513 ;  Rhode 
Island  v.  Massachusetts,  12  Pet.  657,  734 ;  United  States  v.  Stone, 

2  Wall.  525,  537 ;  Kellogg  v.  Smith,  7  Gush.  375,  382 ;  Chenery 
v.  Waltham,  8  Cush.  327;  Hunt  on  Boundaries  (3d  ed.),  396. 

"As  said  by  this  court  in  the  recent  case  of  the  State  of 
Indiana  v.  Kentucky,  136  U.  S.  479,  510,  'it  is  a  principle  of 
public  law,  universally  recognized,  that  long  acquiescence  in  the 
possession  of  territory,  and  in  the  exercise  of  dominion  and 
sovereignty  over  it,  is  conclusive  of  the  nation's  title  and  right- 
ful authority.'  In  the  case  of  Rhode  Island  v.  Massachusetts,  4 
How.  591,  639,  this  court,  speaking  of  the  long  possession  of 
Massachusetts,  and  the  delays  in  alleging  any  mistake  in  the 
action  of  the  commissioners  of  the  colonies,  said:  'Surely  this, 
connected  with  the  lapse  of  time,  must  remove  all  doubts  as  to 
the  right  of  the  respondent  under  the  agreements  of  1711  and 
1718.  No  human  transactions  are  unaffected  by  time.  Its  in- 
fluence is  seen  on  all  things  subject  to  change.  And  this  is 
peculiarly  the  case  in  regard  to  matters' which  rest  in  memory, 
and  which  consequently  fade  with  the  lapse  of  time  and  fall 
with  the  lives  of  individuals.  For  the  security  of  rights, 
whether  of  States  or  individuals,  long  possession  under  a  claim 
of  title  is  protected.  And  there  is  no  controversy  in  which  this 
great  principle  may  be  invoked  with  greater  justice  and  pro- 
priety than  a  case  of  disputed  boundary.'  " 


288  ACQUISITION  AND  TRANSFER  OF  JURISDICTION. 

And  quoting  from  Vattel  on  the  Law  of  Nations  to  the  same 
effect  (Sec.  149,  p.  190)  : 

"The  tranquillity  of  the  people,  the  safety  of  States,  the 
happiness  of  the  human  race  do  not  allow  that  the  possessions, 
empire,  and  other  rights  of  nations  should  remain  uncertain, 
subject  to  dispute  and  ever  ready  to  occasion  bloody  wars.  Be- 
tween nations,  therefore,  it  becomes  necessary  to  admit  prescrip- 
tion founded  on  length  of  time  as  a  valid  and  incontestable 
title." 

And  adds  from  Wheaton  on  International  Law  (Sec.  164,  p. 
260): 

"The  writers  on  natural  law  have  questioned  how  far  that 
peculiar  species  of  presumption,  arising  from  the  lapse  of  time, 
which  is  called  prescription,  is  justly  applicable  as  between 
nation  and  nation;  but  the  constant  and  approved  practice  of 
nations  shows  that  by  whatever  name  it  be  called,  the  uninter- 
rupted possession  of  territory  or  other  property  for  a  certain 
length  of  time  by  one  State  excludes  the  claim  of  every  other  in 
the  same  manner,  as,  by  the  law  of  nature  and  the  municipal 
code  of  every  civilized  nation,  a  similar  possession  by  an  indi- 
vidual excludes  the  claim  of  every  other  person  to  the  articles 
or  property  in  question." 

And  it  was  said : 

"There  are  also  moral  considerations  which  should  prevent 
any  disturbance  of  long  recognized  boundary  lines;  considera- 
tions springing  from  regard  to  the  natural  sentiments  and  affec- 
tions which  grow  up  for  places  on  which  persons  have  long 
resided ;  the  attachments  to  the  country,  to  home  and  to  family, 
on  which  is  based  all  that  is  dearest  and  most  valuable  in  life. ' ' 

In  Louisiana  v.  Mississippi,  202  U.  S.,  1,  53,  this  court  said: 

"The  question  is  one  of  boundary,  and  this  court  has  many 
times  held  that,  as  between  the  States  of  the  Union,  long  ac- 
quiescence in  the  assertion  of  a  particular  boundary  and  the 
exercise  of  dominion  and  sovereignty  over  the  territory  within 
it,  should  be  accepted  as  conclusive,  whatever  the  international 
rule  might  be  in  respect  of  the  acquisition  by  prescription  of 
large  tracts  of  country  claimed  by  both. ' ' 

ATI  application  of  these  principles  cannot  permit  us  to  ignore 
the  conduct  of  the  States  and  the  belief  of  the  people  concerning 
the  purpose  of  the  boundary  line  known  as  the  old  state,  or 
Deakins,  line,  and  to  which  their  deeds  called  as  the  boundary 
of  their  farms,  in  recognition  of  which  they  have  established 


VAN  DEVENTER  v.   HANCKE   AND  MOSSOP.    289 

their  allegiance  as  citizens  of  the  State  of  West  Virginia,  and 
in  accordance  to  which  they  have  fixed  their  homes  and 
habitations.  .  .  . 

The  effect  to  be  given  to  such  facts  as  long  continued  posses- 
sion "gradually  ripening  into  that  condition  which  is  in  con- 
formity with  international  order,"  depends  upon  the  merit  of 
individual  cases  as  they  arise.  1  Oppenheim  International  Law, 
Sec.  243.  In  this  case  we  think  a  right,  in  its  nature  prescrip- 
tive, has  arisen,  practically  undisturbed  for  many  years,  not  to 
be  overthrown  without  doing  violence  to  principles  of  estab- 
lished right  and  justice  equally  binding  upon  States  and  indi- 
viduals. Rhode  Island  v.  Massachusetts,  12  Pet.  657.  .  .  . 

NOTE. — See  Moore,  Digest,  I,  293,  Hyde  I,  192,  and  Ralston,  Interna- 
tional Arbitral  Law  and  Procedure,  270.  The  doctrine  of  acquisition 
by  prescription  played  an  important  part  in  the  controversies  between 
the  United  States  and  Great  Britain  as  to  the  boundaries  of  Vene- 
zuela and  Alaska.  See  Cobbett,  Cases  and  Opinions,  I,  112,  144. 
Jurisdiction  over  the  Bay  of  Conception  in  Newfoundland  and  Dela- 
ware and  Chesapeake  Bays  is  based  upon  the  same  principle.  See 
ante,  155  seg.  A  military  occupation  based  upon  conquest  may  by 
long  continuance  result  in  a  transfer  of  jurisdiction  without  a  formal 
treaty  to  that  effect,  United  States  v.  Hay  ward  (1815),  2  Gallison,  485. 
In  such  a  case  the  title  is  derived  from  prescription  rather  than  from 
conquest. 


SECTION  3.    THE  ACQUISITION  OP  JURISDICTION  BY  CONQUEST. 
VAN  DEVENTER  v.  HANCKE  AND  MOSSOP. 

SUPREME  COUBT  OF  THE  TRANSVAAL.     1903. 
Transvaal  Law  Reports  [1903]  T.  S.  401. 

[The  defendants,  burghers  of  the  South  African  Republic, 
were  living  upon  their  farm  in  the  district  of  Vryheid,  when  in 
the  spring  of  1901  a  British  force  appeared,  to  which  they  were 
compelled  to  surrender.  They  were  later  removed  to  Natal. 
After  their  removal,  certain  wool  belonging  to  them,  which  was 
stored  on  the  farm,  was  confiscated  by  a  Boer  officer  as  the 
property  of  burghers  who  had  wrongfully  and  without  permis- 
sion surrendered  to  the  British  troops.  It  was  sold  at  auction 
and  was  purchased  by  the  plaintiff.  On  the  return  of  the  de- 
fendants from  Natal  after  the  cessation  of  hostilities,  they  found 


290  ACQUISITION  AND  TRANSFER  OF  JURISDICTION. 

the  wool  still  on  their  farm  and  took  possession  of  it.  To  compel 
its  delivery  or  the  payment  of  its  value,  £218,  this  action  was 
brought.  As  bearing  upon  the  decision  of  the  case,  it  should 
be  noted  that  Lord  Roberts,  duly  authorized  thereto  by  the 
Queen,  issued  a  proclamation  September  1,  1900,  annexing  the 
South  African  Republic  to  the  British  Empire.  The  war  still 
continued  until  May  31,  1902,  when  by  the  so-called  treaty  of 
Vereeniging,  the  Boer  generals  agreed  to  surrender.] 

INNES,  C.  J. :  .  .  .  The  plaintiff  bases  his  claim  upon  two 
grounds.  In  the  first  place,  he  says  that  the  wool  in  question 
was  confiscated  in  accordance  with  the  laws  and  military  usages 
of  the  late  South  African  Republic,  and  that  it  thereby  became 
the  property  of  the  Republic.  In  the  second  place,  he  says  that 
even  if  the  confiscation  was  not  in  accordance  with  the  laws  of 
^he  late  Republic,  still  it  was  done  in  good  faith  and  under  mar- 
tial law  by  the  officers  of  the  Boer  forces,  and  should  on  that 
account  be  upheld.  On  one  or  other  of  the  above  grounds  he 
contends  that  the  confiscation  was  valid,  and  that  his  title  by 
purchase  from  the  confiscating  authority  is  a  good  title. 

The  first  of  these  grounds  assumes  the  existence  of  the  late 
Republic  in  March,  1901 ;  it  is  based  upon  certain  proceedings  of 
officials  of  that  State  acting  in  their  capacity  as  such,  arid  carry- 
ing out  its  laws.  Moreover,  the  Law  upon  which  reliance  is 
chiefly  placed  is  one  passed  by  the  Republican  Executive  in  the 
month  of  December,  1900 — after  the  date  of  the  British  annexa- 
tion. Such  a  position  cannot,  in  my  opinion,  be  maintained 
in  this  Court.  On  the  1st  September,  1900,  and  therefore  six 
months  before  the  transactions  now  in  issue  took  place,  the 
territories  known  as  the  South  African  Republic  were  by  Proc- 
lamation No.  15  of  1900  annexed  to  and  declared  to  form  part 
of,  Her  Majesty's  dominions;  and  power  was  given  to  Lord 
Roberts,  then  Commander-in-chief  in  South  Africa,  to  take  such 
measures  and  make  such  laws  as  he  might  deem  necessary  for 
the  peace,  order,  and  good  government  of  the  said  territories. 
In  March,  1901,  therefore,  this  country,  including  the  district 
of  Vryheid,  formed  part  of  the  British  dominions ;  and  this 
Court  cannot  recognise  any  government  or  any  legislative  au- 
thority within  its  limits,  after  that  date,  other  than  the  author- 
ity and  the  government  of  the  British  Crown. 

It  was  argued  for  the  plaintiff  that  the  Annexation  Proclama- 
tion was  premature;  that  at  the  time  when  this  wool  was  con- 


VAN  DEVENTER  v.   HANCKE   AND   MOSSOP.    291 

fiscated  the  district  of  Vryheid  was  subject  to  the  de  facto 
control  and  administration  of  the  Boer  forces ;  that  although  the 
Proclamation  purported  to  annex  the  territory  of  the  Transvaal 
to  the  empire,  there  had,  at  the  time  of  the  annexation,  been  no 
effectual  occupation  of  it  as  a  country,  and  no  subjugation  of  its 
people;  and  that  therefore  the  Republic  continued  to  exist  as  a 
State,  and  its  Government  was  entitled  to  exercise  legislative  and 
administrative  functions.  It  is  no  doubt  correct  as  a  general 
rule  of  international  law  that  two  circumstances  are  necessary 
to  create  a  complete  title  by  conquest:  the  conqueror  must  ex- 
press in  some  clear  manner  his  intention  of  adding  the  territory 
in  question  to  his  dominions,  and  he  must  by  the  exercise  of 
military  force  demonstrate  his  power  to  hold  it  as  part  of  his 
own  possessions.  It  is  also  true  that  in  March,  1901,  large  por- 
tions of  the  Transvaal,  including  the  district  of  Vryheid,  were 
neither  occupied  nor  dominated  by  British  troops;  but  on  the 
contrary  were  under  the  de  facto  control  of  the  Boer  forces. 
And  if  this  were  a  foreign  Court  engaged  in  trying  a  cause  in 
regard  to  which  the  question  of  when  the  conquest  of  the  Trans- 
vaal was  complete  became  relevant  to  the  inquiry,  it  is  possible 
that  points  of  considerable  intricacy  and  difficulty  would  pre- 
sent themselves.  But  those  considerations  are  not  present  here. 
This  is  a  Court  constituted  by  the  British  Crown,  exercising 
powers  and  discharging  functions  derived  from  the  Crown.  In 
its  dealing  with  other  States,  the  Crown  acts  for  the  whole  na- 
tion, and  such  dealings  cannot  be  questioned  or  set  aside  by  its 
Courts.  They  are  acts  of  State  into  the  validity  or  invalidity, 
the  wisdom  or  unwisdom  of  which  domestic  Courts  of  law  have 
no  jurisdiction  to  inquire.  .  .  . 

Mr.  Smuts  [counsel  for  the  plaintiff]  argued,  however,  that 
the  British  Government  had  recognized  the  continued  existence 
of  the  South  African  Republic,  or  at  any  rate  of  its  Government, 
by  concluding  a  treaty  of  peace  with  it  on  the  31st  May,  1902 ; 
and  that  this  Court,  therefore,  should  also  recognise  it.  I  do 
not  so  read  the  Articles  of  Peace  signed  at  Pretoria.  On  the 
contrary,  it  seems  to  me  that  scrupulous  care  was  taken  by  those 
who  represented  the  British  Government  to  refrain  from  any 
recognition  of  the  South  African  Republic  or  its  Government, 
while  at  the  same  time  they  fully  recognised  the  position  of  cer- 
tain leaders  of  a  force  entitled  to  all  the  privileges  of  belliger- 
ents, as  being  persons  with  whom  it  was  proper  and  necessary  to 
treat  in  regard  to  the  terms  upon  which  that  force  should  lay 


292  ACQUISITION  AND  TRANSFER  OF  JURISDICTION. 

down  its  arms.  This  is  clear  to  my  mind  from  the  language 
used  in  describing  the  capacities  of  the  several  signatories  and 
the  persons  they  represented,  and  the  body  of  the  document, 
while  referring  to  the  burgher  forces  and  to  the  burghers  in  the 
field,  makes  no  reference  whatever  to  the  Government  of  either 
of  the  two  Republics. 

For  the  reasons  I  have  indicated,  I  am  of  opinion  that  this 
Court  cannot  recognise  the  existence  of  the  Government  of  the 
South  African  Republic,  or  the  validity  of  any  laws  purporting 
to  be  passed  by  that  Government  after  the  1st  September,  1900. 
This  conclusion  is  fatal  to  the  plaintiff's  claim  as  founded  upon 
the  first  count  of  the  declaration.  .  .  . 

Strictly  speaking,  it  would  be  possible  to  dispose  of  the  sec- 
ond count  upon  the  same  considerations;  because  the  persons 
who  are  stated  to  have  confiscated  this  wool  under  martial  law 
are  described  as  officers  of  the  late  Republic,  and  the  confisca- 
tion relied  upon  would  seem  to  be  a  confiscation  to  the  Repub- 
lican Government  under  an  enactment  passed  after  the  date  of 
annexation.  But  I  prefer  to  consider  the  alternative  claim  not 
from  that  standpoint,  but  upon  the  broad  grounds  on  which  it 
was  argued  at  the  trial.  Briefly  stated,  the  contention  of  the 
plaintiff  on  this  part  of  his  case  was  as  follows :  Assuming  that 
the  confiscation  was  not  in  accordance  with  such  Transvaal  law 
as  this  Court  can  recognise,  still  it  was  the  act  of  the  military 
officers  of  a  force  entitled  to  belligerent  rights,  and  therefore  en- 
titled to  enforce  martial  law — at  any  rate  in  respect  of  the  per- 
sons and  property  of  its  own  members.  The  act  was  done  in 
good  faith,  and  in  furtherance  of  the  prosecution  of  hostilities 
in  which  the  defendants  as  well  as  the  plaintiff  were  engaged; 
it  was  done  under  martial  law,  and  neither  the  act  itself  or  its 
consequences  should  now  be  questioned  by  this  Court. 

It  is  not  easy  to  define  the  exact  position  which  the  burgher 
forces  of  the  Transvaal  should  be  held  by  a  British  Court  to 
have  occupied  after  the  issue  of  the  Annexation  Proclamation. 
At  first  sight  it  would  seem  that  considerable  assistance  might 
be  derived  by  resort  to  American  precedent.  The  Southern  Con- 
federacy was  not  during  the  Civil  War  recognized  as  a  Govern- 
ment either  by  the  President  or  by  the  Courts  of  the  United 
States.  But  there  is  this  fundamental  distinction  between  the 
two  cases:  the  Confederacy,  in  spite  of  its  power  and  its 
strength,  in  spite  of  the  fact  that  it  dominated  vast  tracts  of 
country  and  controlled  and  governed  a  very  large  population, 


VAN  DEVENTEE  v.   HANCKE   AND   MOSSOP.    293 

was  nevertheless  essentially  an  illegal  organization,  formed  for 
the  purpose  of  rebelling  against  the  constituted  authority  of 
the  Union.  And  the  attitude  taken  up  by  the  Supreme  Court 
of  the  United  States  towards  the  Confederacy  and  towards  all 
acts  done  in  furtherance  of  the  rebellion  was  due  to  that  con- 
sideration. The  position  of  the  burgher  forces,  on  the  other 
hand,  was  not  affected  by  any  such  taint  of  illegality.  And  yet, 
from  the  point  of  view  of  a  British  Court,  they  were  a  com- 
munity or  body  of  men  possessing  no  territory  as  a  State  and 
under  no  form  of  government  which  such  a  Court  could  recog- 
nise as  a  legal  government.  But,  as  between  the  two  contending 
armies  they  enjoyed  full  belligerent  rights.  The  recognition  of 
such  rights  is  quite  consistent  with  a  denial  of  any  claim  to 
sovereignty  (see  Rose  v.  Himeley,  4  Cranch,  U.  S.  Reps,  at  p. 
271),  and  certainly  does  not  imply  that  the  armed  organization 
to  which  such  recognition  was  accorded  could  legally  make  any 
regulations  affecting  the  rights  of  British  subjects. 

The  question  is  whether  the  leaders  of  that  community  could, 
in  furtherence  of  the  common  purpose  for  which  it  was  striving, 
deal  with  the  property  of  its  members,  without  their  consent, 
and  whether  this  Court  should  recognise  such  dealing  or  give 
effect  to  its  consequences.  Without  deciding  the  point,  I  shall 
for  the  purposes  of  this  case  assume  that  they  could  so  deal  with 
the  property  of  those  over  whom  they  exercised  control.  But 
clearly  they  could  exercise  such  power  to  no  greater  extent  than 
would  have  been  possible  if  there  had  been  no  annexation  and 
if  the  Republican  Government  had  still  been  in  existence  at 
Pretoria.  The  fact  that  a  hostile  power  had  issued  a  Proclama- 
tion annexing  their  territory  could  not  give  them  more  power 
over  the  burghers  than  they  possessed  before.  Consequently  we 
must  look  to  those  enactments  which,  whether  they  all  of  them 
were  valid  laws  or  not,  were  regarded  by  all  members  of  the 
burgher  forces  as  having  the  force  of  law,  in  order  to  see 
whether  the  military  officers  of  these  forces  acted  within  their 
rights  in  confiscating  this  particular  wool — bearing  in  mind  that 
it  was  not  commandeered  for  warlike  purposes,  but  was  taken 
from  the  defendants  as  a  penalty  for  their  alleged  offence  in 
having  voluntarily  surrendered  without  sufficient  cause.  .  .  . 
[Here  follows  an  examination  of  the  legislation  of  the  South 
African  Republic.] 

Assuming  that  the  military  authorities  of  the  burgher  forces 
had  the  same  power  over  the  defendants  and  their  property  that 


294  ACQUISITION  AND  TRANSFER  OF  JURISDICTION. 

they  would  have  had  in  case  no  Annexation  Proclamation  had 
been  issued,  I  still  consider  that  the  confiscation  was  not  justi- 
fied by  the  martial  law  under  which  action  purports  to  have 
been  taken.  .  .  .  Judgment  should,  therefore,  be  for  the  de- 
fendants, with  costs. 

MASON,  J. :  .  .  .  The  first  point  raised  by  the  defence  is, 
that  upon  the  annexation  of  the  Transvaal  by  Lord  Roberts  on 
the  1st  September,  1900,  the  Government  of  the  South  African 
Republic  came  to  an  end,  and  any  acts  of  its  officers  in  opposi- 
tion to  the  British  Government  can  receive  no  recognition  by 
this  Court.  .  .  .  The  Government  of  the  South  African  Re- 
public after  the  annexation  either  ceased  to  exist  or  continued 
as  a  Government  de  facto  or  de  jure.  If  the  former  were  the 
case  then  the  confiscation  was  invalid,  and  if  the  latter  then  that 
Government  is  subject  to  the  laws  which  it  made  for  itself,  or  at 
any  rate  cannot  have  greater  rights  than  its  alleged  constitution 
confers.  .  .  .  It  is  perfectly  true  that  the  Boers  were 
throughout  substantially  recognised  as  belligerents,  but  belliger- 
ent rights  are  rights  only  against  the  enemy,  not  rights  of  the 
belligerents  inter  se.  These  are  governed  by  the  municipal  law 
of  each  belligerent  (Williams  v.  Bruffy,  96  U.  S.  R.  177 ;  Dewing 
v.  Perdicaries,  96  U.  S.  R.  193;  re  Venice,  2  Wall.  258).  That 
municipal  law  may  be  contained  in  special  statutes  or  military 
codes  applicable  in  time  of  war,  or  may  be  comprised  under  the 
wider  and  less  defined  jurisdiction  of  martial  law  as  understood 
in  British  'jurisprudence.  It  is,  I  think,  quite  clear  that  where 
there  are  definite  provisions  of  military  law  applying  to  military 
offences,  those  provisions  exclude  the  operation  of  martial  law 
in  those  particular  cases  (Planters'  Bank  v.  Union  Bank,  16 
Wall.  483;  Mrs.  Alexander's  Cotton,  2  Wall.  405).  .  .  . 
[After  an  examination  of  the  statutes  of  the  South  African 
Republic,  the  learned  judge  continues :]  It  cannot,  I  think,  be 
successfully  contended,  and  indeed  was  not  contended,  that  the 
confiscation  in  the  present  case  can  be  justified  under  these 
Laws,  which  lay  down  a  method  for  dealing  with  offences  of  the 
kind  charged  against  the  defendants,  with  a  particularity  and 
jealousy  not  to  be  wondered  at,  when  every  citizen  of  the  State 
is  made  subject  to  military  law  and  service.  .  .  .  There  ought 
to  be  judgment  for  the  defendants,  with  costs. 

BRISTOWE,  J. :  .  .  .  In  September  1900,  Lord  Roberts' 
Proclamation  annexing  the  Transvaal  was  issued.  Mr.  Smuts 
admitted  very  frankly  that  the  effect  of  this  was  to  incorporate 


VAN  DEVENTER  v.   HANCKE   AND   MOSSOP.    295 

the  territory  of  the  South  African  Republic  in  the  British  domin- 
ions. And  I  think  it  is  necessary  to  go  a  step  farther  and  to  say, 
that  inasmuch  as,  according  to  modern  notions  at  all  events,  the 
possession  of  territory  is  essential  to  the  existence  of  a  State,  the 
Proclamation  taken  in  connection  with  the  events  which  subse- 
quently occurred  put  an  end  from  the  moment  of  its  issue  to  the 
existence  of  the  Republic  as  a  political  unit.  We  are  then 
brought  face  to  face  with  the  difficult  question  of  what  was  the 
legal  position  of  the  burgher  forces  still  remaining  in  the  field. 
Upon  this  question  there  is,  so  far  as  I  know,  no  authority; 
and  it  may  be  that  the  position  in  which  the  Boer  forces  were 
placed  by  the  Annexation  Proclamation  was  one  unexampled  in 
history. 

Now,  in  the  first  place,  these  forces  were  the  remains  of  the 
fighting  force  of  the  South  African  Republic.  There  was,  as  it 
seems  to  me,  no  question  of  according  to  them  belligerent  rights. 
They  were  enemies  who  still  remained  unconquered.  In  the 
second  place,  they  wrere  a  community  of  persons,  bound  together 
by  ties  of  blood,  actuated  by  a  common  purpose,  and  capable  of 
contracting.  So  much  was  admitted  by  the  treaty  of  Vereenig- 
ing,  which  on  the  face  of  it  was  an  agreement  between  the  Brit- 
ish Government,  on  the  one  hand,  and  the  outstanding  burghers 
acting  through  their  representatives  on  the  other.  Moreover, 
the  treaty  of  Vereeniging  recognized  them  as  having  a  de  facto 
Government,  for  their  representatives  were  described  as  "acting 
as  the  Government  of  the  South  African  Republic."  Indeed, 
the  recognition  of  their  existence  as  a  community  involves,  as 
it  seems  to  me,  an  admission  that  they  had  some  form  of  organ- 
ization or  constitution,  and  that  there  were  certain  laws  by 
which  they  were  bound  inter  se. 

What,  then,  was  this  constitution  and  what  were  these  laws? 
Two  views  were  suggested.  One  is  that  the  outstanding  burgher 
forces  carried  with  them  into  their  exile  (if  I  may  be  allowed  the 
expression)  the  laws  of  their  late  State,  so  far  as  such  laws  were 
necessary  or  applicable  to  their  existence  as  a  military  commu- 
nity. The  other  is,  that  by  some  sort  of  implied  agreement  or 
by  common  consent  they  became  subject  to  martial  law,  namely, 
the  expression  of  the  will  of  their  military  commanders. 

Of  these  two  views  the  former  appears  to  be  the  sounder,  and 
I  hold  that  the  laws  by  which  the  remnant  of  the  Boer  forces 
were  bound  inter  se  were  those  of  their  old  State,  so  far  as  they 
were  applicable  to  the  military  organization,  which  was  all  that 


296  NOTE. 

then  remained.  .  .  .  These  laws  contained  no  provision  au- 
thorizing such  a  confiscation  of  private  property  as  occurred  in 
the  present  case.  ...  It  seems  to  me  that  this  action  fails 
and  must  be  dismissed,  with  costs. 

NOTE. — Compare  Lemkuhl  v.  Kock  (1903),  Transvaal  L.  R.  [1903] 
T.  S.  451.  On  the  subject  of  conquest  see  Campbell  v.  Hall  (1774), 
Cowper,  204;  The  Foltina  (1814),  1  Dodson,  450;  In  re  Southern 
Rhodesia  (1918),  L.  R.  [1919]  A.  C.  211  (an  excellent  discussion); 
Westlake,  Collected  Papers,  475;  Cobbett,  Cases  and  Opinions,  II,  244; 
Hyde,  I,  175;  Moore,  Digest,  I,  290.  Bonfils  (Fauchille)  sec.  535,  ar- 
gues that  conquest  does  not  confer  a  valid  title.  "Taking  possession 
by  violence  is  merely  a  brutal  fact."  Other  writers  have  taken  a 
similar  view,  but  in  international  practice  conquest  is  recognized 
as  a  valid  basis  of  title.  In  addition  to  the  conquest  of  the  Boer 
states  in  1900,  there  were  the  conquest  and  absorption  of  numerous 
German  states  by  Prussia  between  1866  and  1870,  the  annexation  of 
Bosnia  and  Herzegovina  by  Austria  in  1908,  the  annexation  of  Korea 
by  Japan  in  1910,  and  the  proclamation  of  the  annexation  of  Cyrenaica 
and  Tripoli  by  Italy  in  1912  in  the  midst  of  its  war  with  Turkey.  While 
military  measures  were  not  necessary  in  all  these  cases,  the  process 
was  in  all  essentials  a  conquest  and  the  title  of  the  annexing  state 
rested  upon  the  fact  that  it  was  strong  enough  to  carry  out  its  desires. 
A  completed  conquest  is  usually  announced  by  some  formal  act,  but 
this  is  not  essential.  As  was  said  by  Lord  Sumner,  "It  is  only  declara<- 
tory  of  a  state  of  fact.  In  itself  it  is  no  more  indispensable  than  is 
a  declaration  of  war  at  the  commencement  of  hostilities,"  In  re 
Southern  Rhodesia  (1918),  L.  R.  [1919]  A.  C.  211,  240. 

If  realities  rather  than  forms  are  regarded,  many  cases  of  cession 
will  be  seen  to  be  conquests.  If  the  cession  is  voluntary,  as  the  ces- 
sion of  Heligoland  by  Great  Britain  to  Germany  and  the  cession  of 
the  Danish  West  Indies  by  Denmark  to  the  United  States,  no  element 
of  conquest  is  involved.  But  if  the  cession  is  compulsory,  as  were 
the  cession  of  Porto  Rico  to  the  United  States  and  of  Alsace-Lorraine 
to  Prussia  and  its  retro-cession  to  France,  the  new  title  is  based  upon 
conquest  even  though  the  transfer  is  effected  by  means  of  a  treaty 
of  cession. 


AMERICAN  INSURANCE  CO.  v.  CANTER.         297 

SECTION  4.    THE  ACQUISITION  OP  JURISDICTION  BY  CESSION. 

THE    AMERICAN    INSURANCE    COMPANY    AND    THE 

OCEAN  INSURANCE  COMPANY  OF  NEW  YORK, 

Appellants,  v.  356  BALES  OF  COTTON, 

DAVID  CANTER,  Claimant  and 

Appellee. 

SUPREME  COUBT  OF  THE  UNITED  STATES.    1828. 
1  Peters,  511. 

MARSHALL,  C.  J.,  delivered  the  opinion  of  the  court. 

The  plaintiffs  filed  their  libel  in  this  cause  in  the  district  court 
of  South  Carolina,  to  obtain  restitution  of  356  bales  of  cotton, 
part  of  the  cargo  of  the  ship  Point  a  Petre ;  which  had  been  in- 
sured by  them  on  a  voyage  from  New  Orleans  to  Havre  de  Grace, 
in  France.  The  Point  a  Petre  was  wrecked  on  the  coast  of 
Florida,  the  cargo  saved  by  the  inhabitants  and  carried  into 
Key  West,  where  it  was  sold  for  the  purpose  of  satisfying  the 
salvors ;  by  virtue  of  a  decree  of  a  court  consisting  of  a  notary 
and  five  jurors,  which  was  erected  by  an  act  of  the  territorial 
legislature  of  Florida.  .  .  . 

The  cause  depends  mainly  on  the  question  whether  the  prop- 
erty in  the  cargo  saved  was  changed  by  the  sale  at  Key  West. 
.  .  .  Its  validity  has  been  denied  on  the  ground  that  it  was 
ordered  by  an  incompetent  tribunal. 

The  tribunal  was  constituted  by  an  act  of  the  territorial  legis- 
lature of  Florida,  passed  on  the  4th  July,  1823,  which  is  in- 
serted in  the  record.  That  act  purports  to  give  the  power  which 
has  been  exercised;  consequently,  the  sale  is  valid,  if  the  terri- 
torial legislature  was  competent  to  enact  the  law. 

The  course  which  the  argument  has  taken,  will  require  that, 
in  deciding  this  question,  the  court  should  take  into  view  the 
relation  in  which  Florida  stands  to  the  United  States. 

The  constitution  confers  absolutely  on  the  government  of  the 
Union  the  powers  of  making  war  and  of  making  treaties ;  conse- 
quently, that  government  possesses  the  power  of  acquiring  terri- 
tory, either  by  conquest  or  by  treaty. 

The  usage  of  the  world  is,  if  a  nation  be  not  entirely  subdued, 
to  consider  the  holding  of  conquered  territory  as  a  mere  military 
occupation,  until  its  fate  shall  be  determined  at  the  treaty  of 
peace.  If  it  be  ceded  by  the  treaty,  the  acquisition  is  confirmed, 


298  ACQUISITION  AND  TRANSFER  OF  JURISDICTION. 

and  the  ceded  territory  becomes  a  part  of  the  nation  to  which  it 
is  annexed,  either  on  the  terms  stipulated  in  the  treaty  of  cession, 
or  on  such  as  its  new  master  shall  impose.  On  such  transfer  of 
territory,  it  has  never  been  held  that  the  relations  of  the  in- 
habitants with  each  other  undergo  any  change.  Their  relations 
with  their  former  sovereign  are  dissolved,  and  new  relations  are 
created  between  them  and  the  government  which  has  acquired 
their  territory.  The  same  act  which  transfers  their  country, 
transfers  the  allegiance  of  those  who  remain  in  it;  and  the  law, 
which  may  be  denominated  political,  is  necessarily  changed, 
although  that  which  regulates  the  intercourse  and  general  con- 
duct of  individuals,  remains  in  force  until  altered  by  the  newly 
created  power  of  the  state. 

On  the  2d  of  February,  1819,  Spain  ceded  Florida  to  the 
United  States.  The  6th  article  of  the  treaty  of  cession  contains 
the  following  provision :  ' '  The  inhabitants  of  the  territories 
which  his  Catholic  majesty  cedes  to  the  United  States  by  this 
treaty,  shall  be  incorporated  in  the  Union  of  the  United  States, 
as  soon  as  may  be  consistent  with  the  principles  of  the  federal 
constitution,  and  admitted  to  the  enjoyment  of  the  privileges, 
rights,  and  immunities  of  the  citizens  of  the  United  States."  8 
Stats,  at  Large,  252. 

This  treaty  is  the  law  of  the  land,  and  admits  the  inhabitants 
of  Florida  to  the  enjoyment  of  the  privileges,  rights  and  immu- 
nities of  the  citizens  of  the  United  States.  It  is  unnecessary  to 
inquire  whether  this  is  not  their  condition,  independent  of  stipu- 
lation. They  do  not,  however,  participate  in  political  power; 
they  do  not  share  in  the  government  till  Florida  shall  become  a 
State.  In  the  meantime,  Florida  continues  to  be  a  territory  of 
the  United  States,  governed  by  virtue  of  that  clause  in  the  con- 
stitution which  empowers  congress  "to  make  all  needful  rules 
and  regulations  respecting  the  territory  or  other  property 
belonging  to  the  United  States."  .  .  . 


DE  LIMA  v.  BIDWELL. 

SUPBEME  COURT  OF  THE  UNITED  STATES.     1901. 
182  U.  S.  1. 

This  was  an  action  originally  instituted  in  the  Supreme  Court 


DE  LIMA  v.  BIDWELL.  299 

of  the  State  of  New  York  by  the  firm  of  D.  A.  De  Lima  &  Co., 
against  the  collector  of  the  port  of  New  York,  to  recover 'back 
duties  alleged  to  have  been  illegally  exacted  and  paid  under 
protest,  upon  certain  importations  of  sugar  from  San  Juan  in 
the  island  of  Porto  Rico,  during  the  Autumn  of  1899,  and  sub- 
sequent to  the  cession  of  the  island  to  the  United  States.  .  .  . 

The  dates  here  given  become  material: 

In  July  1898,  Porto  Rico  was  invaded  by  the  military  forces 
of  the  United  States  under  General  Miles. 

On  August  12,  1898,  during  the  progress  of  the  campaign  a 
protocol  was  entered  into  between  the  Secretary  of  State  and 
the  French  Ambassador  on  the  part  of  Spain,  providing  for  a 
suspension  of  hostilities,  the  cession  of  the  island  and  the  con- 
clusion of  a  treaty  of  peace.  30  Stat.  1742. 

On  October  18,  Porto  Rico  was  evacuated  by  the  Spanish 
forces. 

On  December  10,  1898,  such  treaty  was  signed  at  Paris, 
(under  which  Spain  ced^ed  to  the  United  States  the  island  of 
Porto  Rico,)  was  ratified  by  the  President  and  Senate,  Febru- 
ary 6,  1899,  and  by  the  Queen  Regent  of  Spain,  March  19,  1899. 
30  Stat.  1754. 

On  March  2,  1899,  an  act  was  passed  making  an  appropriation 
to  carry  out  the  obligations  of  the  treaty. 

On  April  11,  1899,  the  ratifications  were  exchanged,  and  the 
treaty  proclaimed  at  Washington. 

On  April  12,  1900,  an  act  was  passed,  commonly  called  the 
Foraker  act,  to  provide  temporary  revenues  and  a  civil  govern- 
ment for  Porto  Rico,  which  took  effect  May  1,  1900.  .  .  . 

MR.  JUSTICE  BROWN  delivered  the  opinion  of  the  court. 

This  case  raises  the  single  question  whether  territory  acquired 
by  the  United  States  by  cession  from  a  foreign  power  remains 
a  "foreign  country"  within  the  meaning  of  the  tariff  laws. 

Whether  these  cargoes  of  sugar  were  subject  to  duty  depends 
solely  upon  the  question  whether  Porto  Rico  was  a  "foreign 
country"  at  the  time  the  sugars  were  shipped,  since  the  tariff 
act  of  July  24,  1897,  30  Stat.  151,  commonly  known  as  the  Ding- 
ley  act,  declares  that  "there  shall  be  levied,  collected  and  paid 
upon  all  articles  imported  from  foreign  countries"  certain 
duties  therein  specified.  A  foreign  country  was  defined  by  Mr. 
Chief  Justice  Marshall  and  Mr.  Justice  Story  to  be  exclusively 


300  ACQUISITION  AND  TRANSFER  OF  JURISDICTION. 

one  within  the  sovereignty  of  a  foreign  nation,  and  without  the 
sovereignty  of  the  United  States.  The  Boat  Eliza,  2  Gall.  4; 
Taber  v.  United  States,  1  Story,  1;  The  Ship  Adventure,  1 
Brock,  235,  241. 

The  status  of  Porto  Rico  was  this:  The  island  had  been  for 
some  months  under  military  occupation  by  the  United  States  as 
a  conquered  country,  when,  by  the  second  article  of  the  treaty 
of  peace  between  the  United  States  and  Spain,  signed  December 
10,  1898,  and  ratified  April  11,  1899,  Spain  ceded  to  the  United 
States  the  island  of  Porto  Rico,  which  has  ever  since  remained 
in  our  possession,  and  has  been  governed  and  administered  by 
us.  If  the  case  depended  solely  upon  these  facts,  and  the 
question  were  broadly  presented  whether  a  country  which  had 
been  ceded  to  us,  the  cession  accepted,  possession  delivered,  and 
the  island  occupied  and  administered  without  interference  by 
Spain  or  any  other  power,  was  a  foreign  country  or  domestic 
territory,  it  would  seem  that  there  could  be  as  little  hesitation 
in  answering  this  question  as  there  would  be  in  determining  the 
ownership  of  a  house  deeded  in  fee  simple  to  a  purchaser,  who 
had  accepted  the  deed,  gone  into  possession,  paid  taxes  and 
made  improvements  without  let  or  hindrance  from  his  vendor. 
But  it  is  earnestly  insisted  by  the  Government  that  it  "never 
could  have  been  the  intention  of  Congress  to  admit  Porto  Rico 
into  a  customs  union  with  the  United  States,  and  that,  while 
the  island  may  be  to  a  certain  extent  domestic  territory,  it  still 
remains  a  ' '  foreign  country ' '  under  the  tariff  laws,  until  Congress 
has  embraced  it  within  the  general  revenue  system. 

We  shall  consider  this  subject  more  at  length  hereafter,  but 
for  the  present  call  attention  to  certain  cases  in  this  court  and 
certain  regulations  of  the  executive  departments  which  are  sup- 
posed to  favor  this  contention.  .  .  . 

[The  learned  judge  here  examined  United  States  v.  Rice 
(1819),  4  Wheaton,  246;  Fleming  v.  Page  (1850),  9  Howard, 
603;  Cross  v.  Harrison  (1854),  16  Howard,  164;  and  the  prac- 
tice and  rulings  of  the  executive  departments  as  to  the  status  of 
Louisiana,  Florida,  Texas,  California  and  Alaska  before  their 
status  was  determined  by  Congress.] 

From  this  resume  of  the  decisions  of  this  court,  the  instruc- 
tions of  the  executive  departments,  and  the  above  act  of  Con- 
gress, it  is  evident  that,  from  1803,  the  date  of  Mr.  Gallatin's 
letter,  to  the  present  time,  there  is  not  a  shred  of  authority, 
except  the  dictum  in  Fleming  v.  Page  (practically  overruled  in 


DE  LIMA  v.  BIDWELL.  301 

Cross  v.  Harrison),  for  holding  that  a  district  ceded  to  and  in 
the  possession  of  the  United  States  remains  for  any  purpose  a 
foreign  country.  Both  these  conditions  must  exist  to  produce 
a  change  of  nationality  for  revenue  purposes.  Possession  is 
not  alone  sufficient,  as  was  held  in  Fleming  v.  Page,  nor  is  a 
treaty  ceding  such  territory  sufficient  without  a  surrender  of 
possession,  Keene  v.  McDonough,  8  Pet.  308;  Pollard's  Heirs 
v.  Kibbe,  14  Pet.  353,  406;  Hallet  v.  Hunt,  7  Ala.  899;  The 
Fama,  5  Ch.  Rob.  97.  The -practice  of  the  executive  depart- 
ments, thus  continued  for  more  than  half  a  century,  is  entitled 
to  great  weight,  and  should  not  be  disregarded  nor  overturned 
except  for  cogent  reasons,  and  unless  it  be  clear  that  such  con- 
struction be  erroneous.  United  States  v.  Johnson,  124  U.  S. 
236,  and  other  cases  cited. 

But  were  this  presented  as  an  original  question  we  should  be 
impelled  irresistibly  to  the  same  conclusion. 

By  Article  II,  section  2,  of  the  Constitution,  the  President  is 
given  power,  "by  and  with  the  advice  and  consent  of  the  Senate, 
to  make  treaties,  provided  that  two-thirds  of  the  senators  pres- 
ent concur ' ' ;  and  by  Art.  VI,  ' '  this  Constitution  and  the  laws  of 
the  United  States,  which  shall  be  made  in  pursuance  thereof; 
and  all  treaties  made  or  which  shall  be  made,  under  the  author- 
ity of  the  United  States,  shall  be  the  supreme  law  of  the  land." 
It  will  be  observed  that  no  distinction  is  made  as  to  the  ques- 
tion of  supremacy  between  laws  and  treaties,  except  that  both 
are  controlled  by  the  Constitution.  A  law  requires  the  assent 
of  both  houses  of  Congress,  and,  except  in  certain  specified  cases, 
the  signature  of  the  President.  A  treaty  is  negotiated  and  made 
by  the  President,  with  the  concurrence  of  two-thirds  of  the  sen- 
ators present,  but  each  of  them  is  the  supreme  law  of  the  land. 

As  was  said  by  Chief  Justice  Marshall  in  The  Peggy,  1  Cranch, 
103,  110:  "Where  a  treaty  is  the  law  of  the  land,  and  as  such 
affects  the  rights  of  parties  litigating  in  court,  that  treaty  as 
much  binds  those  rights,  and  is  as  much  to  be  regarded  by  the 
court  as  an  act  of  Congress."  And  in  Foster  v.  Neilson,  2  Pet. 
253,  314,  he  repeated  this  in  substance:  "Our  Constitution 
declares  a  treaty  to  be  the  law  of  the  land.  It  is,  consequently, 
to  be  regarded  in  courts  of  justice  as  equivalent  to  an  act  of  the 
legislature,  whenever  it  operates  of  itself  without  the  aid  of  any 
legislative  provision."  So  in  Whitney  v.  Robertson,  124  U.  S. 
190:  "By  the  Constitution  a  treaty  is  placed  on  the  same 
footing,  and  made  of  like  obligation,  with  an  act  of  legislation. 


302  ACQUISITION  AND  TRANSFER  OF  JURISDICTION. 

Both  are  declared  by  that  instrument  to  be  the  supreme  law  of 
the  land,  and  no  superior  efficacy  is  given  to  either  over  the 
other.  When  the  two  relate  to  the  same  subject,  the  courts  will 
always  endeavor  to  construe  them  so  as  to  give  effect  to  both,  if 
that  can  be  done  without  violating  the  language  of  either ;  but  if 
the  two  are  inconsistent,  the  one  last  in  date  will  control  the 
other,  provided  always  that  the  stipulation  of  the  treaty  on  the 
subject  is  self -executing. "  To  the  same  effect  are  the  Cherokee 
Tobacco,  11  Wall.  616,  and  the  Head  Money  cases,  112  U.  S. 
580. 

One  of  the  ordinary  incidents  of  a  treaty  is  the  cession  of  ter- 
ritory. It  is  not  too  much  to  say  it  is  the  rule,  rather  than  the 
exception,  that  a  treaty  of  peace,  following  upon  a  war,  provides 
for  a  cession  of  territory  to  the  victorious  party.  It  was  said 
by  Chief  Justice  Marshall  in  American  Ins.  Co.  v.  Canter,  1 
Pet.  511,  542:  "The  Constitution  confers  absolutely  upon  the 
Government  of  the  Union  the  powers  of  making  war  and  of 
making  treaties;  consequently  that  Government  possesses  the 
power  of  acquiring  territory,  either  by  conquest  or  by  treaty." 
The  territory  thus  acquired  is  acquired  as  absolutely  as  if  the 
annexation  were  made,  as  in  the  case  of  Texas  and  Hawaii,  by 
an  act  of  Congress. 

It  follows  from  this  that  by  the  ratification  of  the  treaty  of 
Paris  the  island  became  territory  of  the  United  States — although 
not  an  organized  territory  in  the  technical  sense  of  the  word. 

Territory  thus  acquired  can  remain  a  foreign  country  under 
the  tariff  laws  only  upon  one  of  two  theories;  either  that  the 
word  "foreign"  applies  to  such  countries  as  were  foreign  at 
the  time  the  statute  was  enacted,  notwithstanding  any  subse- 
quent change  in  their  condition,  or  that  they  remain  foreign 
under  the  tariff  laws  until  Congress  has  formally  embraced 
them  within  the  customs  union  of  the  States.  The  first  theory 
is  obviously  untenable.  While  a  statute  is  presumed  to  speak 
from  the  time  of  its  enactment,  it  embraces  all  such  persons 
or  things  as  subsequently  fall  within  its  scope,  and  ceases  to 
apply  to  such  as  thereafter  fall  without  its  scope.  Thus,  a  stat- 
ute forbidding  the  sale  of  liquors  to  minors  applies  not  only 
to  minors  in  existence  at  the  time  the  statute  was  enacted,  but 
to  all  who  are  subsequently  born;  and  ceases  to  apply  to  such 
as  thereafter  reach  their  majority.  So,  when  the  Constitution 
of  the  United  States  declares  in  Art.  I,  sec.  10,  that  the  States 


DE  LIMA  v.  BIDWELL.  303 

shall  not  do  certain  things,  this  declaration  operates  not  only 
upon  the  thirteen  original  States,  but  also  upon  all  who  subse- 
quently become  such ;  and  when  Congress  places  certain  restric- 
tions upon  the  powers  of  a  territorial  legislature,  such  restric- 
tions cease  to  operate  the  moment  such  territory  is  admitted  as 
a  State.  By  parity  of  reasoning  a  country  ceases  to  be  foreign 
the  instant  it  becomes  domestic.  So,  too,  if  Congress  saw  fit  to 
cede  one  of  its  newly  acquired  territories  (even  assuming  that 
it  had  the  right  to  do  so)  to  a  foreign  power,  there  could  be  no 
doubt  that  from  the  day  of  such  cession  and  the  delivery  of 
possession,  such  territory  would  become  a  foreign  country,  and 
be  reinstated  as  such  under  the  tariff  laws.  Certainly  no  act  of 
Congress  would  be  necessary  in  such  case  to  declare  that  the 
laws  of  the  United  States  had  ceased  to  apply  to  it. 

The  theory  that  a  country  remains  foreign  with  respect  to  the 
tariff  laws  until  Congress  has  acted  by  embracing  it  within  the 
Customs  Union,  presupposes  that  a  country  may  be  domestic  for 
one  purpose  and  foreign  for  another.  It  may  undoubtedly  be- 
come necessary  for  the  adequate  administration  of  a  domestic 
territory  to  pass  a  special  act  providing  the  proper  machinery 
and  officers,  as  the  President  would  have  no  authority,  except 
under  the  war  power,  to  administer  it  himself;  but  no  act  is 
necessary  to  make  it  domestic  territory  if  once  it  has  been  ceded 
to  the  United  States.  We  express  no  opinion  as  to  whether 
Congress  is  bound  to  appropriate  the  money  to  pay  for  it.  Thus 
has  been  much  discussed  by  writers  upon  constitutional  law,  but 
it  is  not  necessary  to  consider  it  in  this  case,  as  Congress  made 
prompt  appropriation  of  the  money  stipulated  in  the  treaty. 
This  theory  also  presupposes  that  territory  may  be  held  indefi- 
nitely by  the  United  States;  that  it  may  be  treated  in  every 
particular,  except  for  tariff  purposes,  as  domestic  territory; 
that  laws  may  be  enacted  and  enforced  by  officers  of  the  United 
States  sent  there  for  that  purpose;  that  insurrections  may  be 
suppressed,  wars  carried  on,  revenues  collected,  taxes  imposed; 
in  short,  that  everything  may  be  done  which  a  government  can 
do  within  its  own  boundaries,  and  yet  that  the  territory  may 
still  remain  a  foreign  country.  That  this  state  of  things  may 
continue  for  years,  for  a  century  even,  but  that  until  Congress 
enacts  otherwise,  it  still  remains  a  foreign  country.  To  hold 
that  this  can  be  done  as  matter  of  law  we  deern  to  be  pure  judi- 
cial legislation.  We  find  no  warrant  for  it  in  the  Constitution 
or  in  the  powers  conferred  upon  this  court.  It  is  true  the  non- 


304  ACQUISITION  AND  TRANSFER  OF  JURISDICTION. 

action  of  Congress  may  occasion  a  temporary  inconvenience; 
but  it  does  not  follow  that  courts  of  justice  are  authorized  to 
remedy  it  by  inverting  the  ordinary  meaning  of  words. 

If  an  act  of  Congress  be  necessary  to  convert  a  foreign  coun- 
try into  domestic  territory,  the  question  at  once  suggests  itself, 
what  is  the  character  of  the  legislation  demanded  for  this  pur- 
pose ?  Will  an  act  appropriating  money  for  its  purchase  be  suffi- 
cient? Apparently  not.  Will  an  act  appropriating  the  duties 
collected  upon  imports  to  and  from  such  country  for  the  bene- 
fit of  its  government  be  sufficient?  Apparently  not.  Will  acts 
making  appropriations  for  its  postal  service,  for  the  establish- 
ment of  lighthouses,  for  the  maintenance  of  quarantine  stations, 
for  erecting  public  buildings,  have  that  effect?  Will  an  act 
establishing  a  complete  local  government,  but  with  the  reserva- 
tion of  a  right  to  collect  duties  upon  commerce,  be  adequate 
for  that  purpose  ?  None  of  these,  nar  all  together,  will  be  suffi- 
cient, if  the  contention  of  the  Government  be  sound,  since  acts 
embracing  all  these  provisions  have  been  passed  in  connection 
with  Porto  Rico,  and  it  is  insisted  that  it  is  still  a  foreign  coun- 
try within  the  meaning  of  the  tariff  laws.  We  are  unable  to 
acquiesce  in  this  assumption  that  a  territory  may  be  at  the  same 
time  both  foreign  and  domestic.  .  .  . 

We  are  therefore  of  opinion  that  at  the  time  these  duties 
were  levied  Porto  Rico  was  not  a  foreign  country  within  the 
meaning  of  the  tariff  laws  but  a  territory  of  the  United  States, 
that  the  duties  were  illegally  exacted  and  that  the  plaintiffs 
are  entitled  to  recover  them  back. 

The  judgment  of  the  Circuit  Court  for  the  Southern  District 
of  New  York  is  therefore  reversed  and  the  case  remanded  to  that 
court  for  further  proceedings  in  consonance  with  this  opinion. 

MR.  JUSTICE  MCKENNA,  (with  whom  concurred  MR.  JUSTICE 
SHIR  AS  and  MR.  JUSTICE  WHITE,)  dissenting.  .  .  . 

NOTE. — Cession  as  a  means  of  transferring  jurisdiction  from  one 
state  to  another  may  be  voluntary,  as  in  the  case  of  a  sale  or  ex- 
change of  territories,  or  it  may  be  involuntary,  as  in  the  case  of 
the  surrender  of  territories  in  consequence  of  defeat  in  war  or  a 
threat  of  use  of  force.  In  the  history  of  the  United  States  the  pur- 
chase of  Louisiana  from  France  in  1803,  of  Florida  from  Spain  in 
1819,  of  Alaska  from  Russia  in  1867  and  of  the  Danish  West  Indies 
from  Denmark  in  1916  are  examples  of  the  former,  while  the  forcible 
taking  of  California  from  Mexico  in  1848  and  of  Porto  Rico  and  the 
Philippines  from  Spain  in  1898  are  examples  of  the  latter.  The  volun- 
tary union  of  one  country  with  another,  such  as  the  union  of  Texas  and 


NOTE.  305 

Hawaii  with  the  United  States,  may  also  be  described  as  a  cession.  Re- 
linquishment  should  be  distinguished  from  cession,  since  the  former 
sovereign  merely  withdraws  its  jurisdiction  without  naming  a  gran- 
tee. Thus  Spain  relinquished  its  sovereignty  over  Cuba  in  1898.  The 
treaty  of  Versailles  contains  numerous  clauses  (conveniently  arranged 
in  Hyde,  I,  178  note)  in  which  Germany  renounces  its  sovereignty 
over  various  territories  in  favor  of  a  particular  state  or  group  of 
states.  Such  a  renunciation  has  all  the  marks  of  a  cession. 

Cessions  are  usually  effected  by  formal  treaties  which  not  only 
delimit  the  ceded  territory,  but  also  provide  for  the  disposition  of  the 
public  property  therein  and  often  contain  stipulations  as  to  the  civil 
status  of  the  inhabitants.  A  cession  may  be  also  effected  by  a  mere 
offer  and  acceptance,  as  was  done  when  Texas  and  Hawaii  were  an- 
nexed to  the  United  States.  Without  a  treaty  or  other  formal  act 
the  long-continued  occupation  of  neutral  territory  by  the  enemy  in 
time  of  peace  with  the  concurrence  of  the  neutral  sovereign  may  be 
construed  as  evidence  that  the  occupation  was  the  result  of  cession. 
The  Bolleta  (1809),  Edwards,  171.  See  Phillipson,  The  Termination 
of  War  and  Treaties  of  Peace;  Hyde,  I,  177;  Bonfils  (Fauchille),  sec. 
567;  Moore,  Digest,  I,  273. 

As  the  acquisition  of  jurisdiction,  whether  by  formal  cession  or 
otherwise,  is  an  act  of  state,  its  terms  rest  in  the  discretion  of  the 
annexing  government,  and  more  often  than  not  the  transaction  pre- 
sents no  justiciable  question.  Among  the  many  decisions  to  this 
effect  are  Nabob  of  the  Carnatic  v.  East  India  Co.  (1791),  1  Ves.  Jr.  371, 
2  Ves.  Jr.  55;  Elphinstone  v.  Bedreechund  (1830),  1  Knapp,  P.  C.  316; 
Secretary  of  State  in  Council  of  India  v.  Kamachee  Boye  Sahaba 
(1859),  7  Moore,  Ind.  App.  476;  Doss  v.  Secretary  of  State  for  India 
(1875),  L.  R.  19  Eq.  509;  Rustomjee  v.  The  Queen,  (1876),  1  Q.  B. 
D.  487,  2  Q.  B.  D.  69;  Cook  v.  Sprigg  (1899),  L,.  R.  [1899]  A.  C.  572; 
West  Rand  Central  Gold  Mining  Co.,  Ltd.,  v.  The  King  (1905),  L.  R. 
[1905]  2  K.  B.  391. 


CHAPTER  VIII. 

EFFECTS  OF  THE  TRANSFER  OF  JURISDICTION. 
SECTION  1.     EFFECT  ON  PUBLIC  AND  PRIVATE  LAW. 

THE  ADVOCATE-GENERAL  OF  BENGAL  v.  RANEE 
SURNOMOYE  DOSSEE. 

JUDICIAL  COMMITTEE  OF  THE  PRIVY  COUNCIL  OF  GREAT  BRITAIN.     1863. 
2  Moore,  Privy  Council   (N.  S.),  22. 

On  appeal  from  the  Supreme  Court  at  Calcutta. 

The  question  in  this  case  was  whether  the  interest  of  a 
Hindoo,  a  British  subject,  in  a  fund  which  was  standing  to 
the  credit  of  an  account  in  a  cause  in  the  Supreme  Court  at 
Calcutta,  had  been  forfeited  to  the  Crown,  by  reason  of  his  hav- 
ing committed  suicide  in  Calcutta,  and  found  felo  de  se  by  a 
coroner's  jury  there.  .  .  . 

The  Right  Hon.  LORD  KINGSDOWN  :  The  question  in  this  case 
arises  on  the  claim  of  the  Crown  to  a  portion  of  the  personal 
estate  of  Rajah  Kistonauth  Roy,  who  destroyed  himself  in 
Calcutta  on  the  31st  of  October,  1844,  and  was  found  by  inquisi- 
tion to  have  been  felo  de  se.  .  .  .  He  was  a  Hindoo  both  by 
birth  and  religion.  .  .  . 

At  what  time  then,  and  in  what  manner,  did  the  forfeiture  at- 
tached by  the  law  of  England  to  the  personal  property  of  per- 
sons committing  suicide  in  that  country,  become  extended  to  a 
Hindoo  committing  the  same  act  in  Calcutta  ? 

The  sum  of  the  Appellant's  argument  was  this: — that  the 
English  Criminal  law  was  applicable  to  Natives  as  well  as 
Europeans  within  Calcutta,  at  the  time  when  the  death  of  the 
Rajah  took  place,  and  the  sovereignty  of  the  English  Crown  was 
at  that  time  established ;  that  the  English  settlers  when  they 
first  went  out  to  the  East  Indies  in  the  reign  of  Queen  Eliza- 

306 


BENGAL  v.  RANEE  SURNOMOYE  DOSSEE.        307 

beth  took  with  them  the  whole  law  of  England,  both  Civil  and 
Criminal,  unless  so  far  as  it  was  inapplicable  to  them  in  their 
new  condition;  that  the  law  of  felo  de  se  was  a  part  of  the 
Criminal  law  of  England  which  was  not  inapplicable  to  them  in 
their  new  condition,  and  that  it,  therefore,  became  part  of  the 
law  of  the  country. 

Where  Englishmen  establish  themselves  in  an  uninhabited  or 
barbarous  country,  they  carry  with  them  not  only  the  laws, 
but  the  sovereignty  of  their  own  State;  and  those  who  live 
amongst  them  and  become  members  of  their  community  become 
also  partakers  of,  and  subject  to  the  same  laws. 

But  this  was  not  the  nature  of  the  first  settlement  made  in 
India — it  was  a  settlement  made  by  a  few  foreigners  for  the 
purpose  of  trade  in  a  very  populous  and  highly  civilized  coun- 
try, under  the  government  of  a  powerful  Mahomedan  ruler, 
with  whose  sovereignty  the  English  Crown  never  attempted  nor 
pretended  to  interfere  for  some  centuries  afterwards. 

If  the  settlement  had  been  made  in  a  Christian  country  of 
Europe,  the  settlers  would  have  become  subject  to  the  laws  of 
the  country  in  which  they  settled.  It  is  true  that  in  India  they 
retained  their  own  laws  for  their  own  government  within  the 
Factories,  which  they  were  permitted  by  the  ruling  powers  of 
India  to  establish;  but  this  was  not  on  the  ground  of  general 
international  law,  or  because  the  Crown  of  England  or  the  laws 
of  England  had  any  proper  authority  in  India,  but  upon  the 
principles  explained  by  Lord  Stowell  in  a  very  celebrated  and 
beautiful  passage  of  his  judgment  in  the  case  of  "The  Indian 
Chief"  (3  Rob.  Adm.  Rep.  28). 

The  laws  and  usages  of  Eastern  countries  where  Christianity 
does  not  prevail  are  so  at  variance  with  all  the  principles,  feel- 
ings, and  habits  of  European  Christians  that  they  have  usually 
been  allowed  by  the  indulgence  or  weakness  of  the  Potentates 
of  those  countries  to  retain  the  use  of  their  own  laws,  and  their 
Factories  have  for  many  purposes  been  treated  as  part  of  the 
territory  of  the  Sovereign  from  whose  dominions  they  come. 
But  the  permission  to  use  their  own  laws  by  European  settlers 
does  not  extend  those  laws  to  Natives  within  the  same  limits, 
who  remain  to  all  intents  and  purposes  subjects  of  their  own 
Sovereign,  and  to  whom  European  laws  and  usages  are  as  little 
suited  as  the  laws  of  the  Mahometans  and  Hindoos  are  suited 
to  Europeans.  These  principles  are  too  clear  to  require  any 


308    EFFECTS  OF  TRANSFER  OF  JURISDICTION. 

authority  to  support  them,  but  they  are  recognized  in  the  judg- 
ment to  which  we  have  above  referred. 

But,  if  the  English  laws  were  not  applicable  to  Hindoos  on 
the  first  settlement  of  the  country,  how  could  the  subsequent 
acquisition  of  the  rights  of  sovereignty  by  the  English  Crown 
make  any  alteration?  It  might  enable  the  Crown  by  express 
enactment  to  alter  the  laws  of  the  country,  but  until  so  altered 
the  laws  remained  unchanged.  The  question,  therefore,  and 
the  sole  question  in  this  case  is,  whether  by  express  enactment 
the  English  law  of  felo  de  se,  including  the  forfeiture  attached 
to  it,  had  been  extended  in  the  year  1844  to  Hindoos  destroying 
themselves  in  Calcutta. 

We  were  referred  by  Mr.  Melvill  in  his  very  able  argument, 
to  the  Charter  of  Charles  II.  in  1661,  as  the  first,  and  indeed 
the  only  one  which  in  express  terms  introduces  English  law  into 
the  East  Indies.  It  gave  authority  to  the  Company  to  appoint 
Governors  of  the  several  places  where  they  had  or  should  have 
Factories,  and  it  authorized  such  Governors  and  their  Council 
to  judge  all  persons  belonging  to  the  said  Company,  or  that 
should  live  under  them,  in  all  causes,  whether  Civil  or  Criminal, 
according  to  the  laws  of  the  Kingdom  of  England,  and  to  exe- 
cute judgment  accordingly. 

The  English  Crown,  however,  at  this  time  clearly  had  no 
jurisdiction  over  native  subjects  of  the  Mogul,  and  the  Charter 
was  admitted  by  Mr.  Melvill  (as  we  understood  him)  to  apply 
only  to  the  European  servants  of  the  Company;  at  all  events 
it  could  have  no  application  to  the  question  now  under  consid- 
eration. The  English  law,  Civil  and  Criminal,  has  been  usually 
considered  to  have  been  made  applicable  to  Natives,  within  the 
limits  of  Calcutta,  in  the  year  1726,  by  the  Charter,  13th  Geo. 
1.  Neither  that  nor  the  subsequent  Charters  expressly  declare 
that  the  English  law  shall  be  so  applied,  but  it  seems  to  have 
been  held  to  be  the  necessary  consequence  of  the  provisions  con- 
tained in  them. 

But  none  of  these  Charters  contained  any  forms  applicable 
to  the  punishment,  by  forfeiture  or  otherwise,  of  the  crime  of 
self-murder,  and  with  respect  to  other  offences  to  which  the 
Charters  did  extend,  the  application  of  the  criminal  law  of 
England  to  Natives  not  Christians,  to  Mahomedans  and  Hindoos, 
has  been  treated  as  subject  to  qualifications  without  which  the 
execution  of  the  law  would  have  been  attended  with  intolerable 
injustice  and  cruelty. 


BENGAL  v.  RANEE  SURNOMOYE  DOSSEE.       309 

To  apply  the  law  which  punishes  the  marrying  a  second  wife 
whilst  the  first  is  living,  to  a  people  amongst  whom  polygamy 
is  a  recognized  institution,  would  have  been  monstrous,  and 
accordingly  it  has  not  been  so  applied. 

In  like  manner,  the  law,  which  in  England  most  justly  pun- 
ishes as  a  heinous  offence,  the  carnal  knowledge  of  a  female 
under  ten  years  of  age,  cannot  with  any  propriety  be  applied 
to  a  country  where  puberty  commences  at  a  much  earlier  age, 
and  where  females  are  not  unfrequently  married  at  the  age  of 
ten  years. 

Accordingly,  in  the  case  referred  to  in  the  argument,  the  law 
was  held  not  to  apply. 

Is  the  law  of  forfeiture  for  suicide  one  which  can  be  consid- 
ered properly  applicable  to  Hindoos  and  Mahomedans? 

The  grounds  on  which  suicide  is  treated  in  England  as  an 
offence  against  the  law,  and  punished  by  forfeiture  of  the  of- 
fender's goods  and  chattels  to  the  King,  are  stated  more  fully 
in  the  case  of  Hales  v.  Petit,  in  Plowden  's  Reports,  p.  261,  than 
in  any  other  book  which  we  have  met  with.  It  is  there  stated, 
that  it  is  an  offence  against  nature,  against  God,  and  against 
the  King.  Against  nature,  because  against  the  instinct  of  self- 
preservation  ;  against  God,  because  against  the  commandment, 
"Thou  shalt  not  kill,"  and  a  felo  de  se  kills  his  own  soul; 
against  the  King,  in  that  thereby  he  loses  a  subject. 

Can  these  considerations  extend  to  native  Indians,  not  Chris- 
tians, not  recognizing  the  authority  of  the  Decalogue,  and  owing 
at  the  time  when  this  law  is  supposed  to  have  been  introduced 
no  allegiance  to  the  King  of  Great  Britain? 

The  nature  of  the  punishment  also  is  very  little  applicable  to 
such  persons.  A  part  of  it  is,  that  the  body  of  the  offender 
should  be  deprived  of  the  rites  of  Christian  burial  in  consecrated 
ground.  The  forfeiture  extends  to  chattels  real  and  personal, 
but  not  to  real  estates;  these  distinctions,  at  least  in  the  sense 
in  which  they  are  understood  in  England,  not  being  known  or 
intelligible  to  Hindoos  and  Mahomedans. 

Self-destruction,  though  treated  by  the  law  of  England  as 
Murder,  and  spoken  of  in  the  case  to  which  we  have  referred 
in  Plowden  as  the  worst  of  all  Murders,  is  really,  as  it  affects 
society,  and  in  a  moral  and  religious  point  of  view,  of  a  charac- 
ter very  different  not  only  from  all  other  Murders,  but  from 
all  other  Felonies.  These  distinctions  are  pointed  out  with  great 
force  and  clearness  in  the  notes  attached  to  the  Indian  Code. 


310    EFFECTS   OF   TRANSFER  OF  JURISDICTION. 

as  originally  prepared  by  Lord  Macaulay  and  the  other  Com- 
missioners. The  truth  is,  that  the  act  is  one  which  in  countries 
not  influenced  by  the  doctrines  of  Christianity  has  been  re- 
garded as  deriving  its  moral  character  altogether  from  the  cir- 
cumstances in  which  it  is  committed: — sometimes  as  blameable, 
sometimes  as  justifiable,  sometimes  as  meritorious,  or  even  an 
act  of  positive  duty. 

In  this  light  suicide  seems  to  have  been  viewed  by  the 
founders  of  the  Hindoo  Code,  who  condemn  it  in  ordinary 
cases  as  forbidden  by  their  religion;  but  in  others,  as  in 
the  well-known  instances  of  Suttee  and  self-immolation  under 
the  car  of  Juggernaut,  treat  it  as  an  act  of  great  religious 
merit. 

We  think,  therefore,  the  law  under  consideration  inapplicable 
to  Hindoos,  and  if  it  had  been  introduced  by  the  Charters 
in  question  with  respect  to  Europeans,  we  should  think  that 
Hindoos  would  have  been  excepted  from  its  operation.  But 
that  it  was  not  so  introduced  appears  to  us  to  be  shown 
by  the  admirable  judgment  of  Sir  Barnes  Peacock  in  this 
case ;  and  if  it  were  not  so  introduced,  then  as  regards  Natives,  it 
never  had  any  existence. 

It  would  not  necessarily  follow  that,  therefore,  it  never  had 
existed  as  regards  Europeans.  That  question  would  depend 
upon  this,  whether,  when  the  original  settlers,  under  the  pro- 
tection of  their  own  Sovereign,  were  governed  by  their  own 
laws,  those  laws  included  the  one  now  under  consideration; 
whether  an  offence  of  this  description  was  an  offence  against 
the  King's  peace,  for  which  he  was  entitled  to  claim  forfeiture; 
whether  the  Factory  could  for  this  purpose  be  considered  as 
within  his  jurisdiction.  In  that  case  it  might  be  that  the 
subsequent  appointment  of  Coroners  by  the  Act  of  33rd  Geo.  Ill 
would  render  effectual  a  right  previously  existing,  but  for  the 
recovery  of  which  no  adequate  remedy  had  been  previously 
provided. 

We  are  not  quite  sure  whether  the  Court  below  intended  to 
determine  this  point  or  not.  Much  of  the  reasoning  in  the 
judgment  is  applicable  to  Europeans  as  well  as  to  Natives, 
but  the  Chief  Justice  in  his  judgment  says: — "At  present  we 
have  merely  to  consider  the  question,  so  far  as  it  relates  to  the 
goods  and  chattels  of  a  Native  who  wilfully  and  intentionally 
destroys  himself,  and  who  cannot  in  strictness  be  called  a  felo 


PHILIPPINE  &c.  CO.  v.  UNITED  STATES.        311 

de  se;  and  we  now  proceed  to  deal  with  that  question,  and  with 
that  question  alone." 

The  point  so  decided  we  think  perfectly  clear,  and  it  is  not 
necessary  to  go  further.  Since  the  new  Code,  which  confines  the 
penalty  of  foreiture  within  much  narrower  limits  than  existed 
previously  to  its  enactment,  and  does  not  extend  it  to  the  prop- 
erty of  persons  committing  suicide,  the  case  can  hardly  again 
arise. 

We  have  no  doubt  that  it  is  our  duty  in  this  case,  humbly  to 
advise  Her  Majesty  to  dismiss  the  appeal,  with  costs. 


THE    PHILIPPINE    SUGAR    ESTATES    DEVELOPMENT 
COMPANY  (LIMITED)  v.  THE  UNITED  STATES. 

COUBT  OF  CLAIMS  OF  THE  UNITED  STATES.     1904. 
39  Ct.  Cl.  225. 

[The  claimant,  a  corporation  chartered  at  Manila  in  the  Phil- 
ippine Islands  in  1900  in  accordance  with  the  provisions  of  the 
Spanish  law  in  force  in  the  Islands  prior  to  their  cession  to  the 
United  States,  sues  for  the  rent  of  its  premises  which  had  been 
taken  for  the  use  of  the  American  troops.  Such  rent  had  not 
been  paid  because  question  had  been  raised  as  to  the  true  owner- 
ship of  the  property.] 

HARVEY,  J.,  delivered  the  opinion  of  the  court.    .    .    . 

A  more  serious  question  is  presented  in  considering  the  com- 
petency of  the  local  authorities  to  create  the  plaintiff  a  corpora- 
tion. If  that  authority  did  not  exist,  then  plaintiff  acquired  no 
legal  existence  and  has  none  now. 

The  company  was  organized  under  the  Spanish  law  claimed 
by  plaintiff  to  be  in  force  in  the  Philippine  Islands  after  the 
treaty  of  Paris.  Articles  incorporating  plaintiff  were  executed 
in  January,  1900,  and  were  duly  recorded  in  the  Mercantile 
Registry  of  Manila  soon  thereafter.  The  treaty  which  ceded  the 
islands  to  the  United  States  was  signed  December  10,  1898,  and 
ratified  the  following  April.  During  this  time  Manila  was 
under  the  military  control  of  the  United  States,  and  the  munic- 
ipal law  of  the  place  was  administered  and  enforced  by  the  mili- 
tary government,  except  as  modified  by  the  military  authorities. 


312    EFFECTS   OF   TRANSFER  OF  JURISDICTION. 

When  the  treaty  ceding  the  islands  was  ratified  the  sovereignty 
of  the  United  States  became  absolute.  Translations  of  the  laws 
then  in  force  in  the  ceded  territory  were  published  and  issued 
by  authority  of  the  Secretary  of  War.  This  included  the  civil 
code  and  the  code  of  commerce,  which  regulated  rights  of  prop- 
erty and  prescribed  rules  for  commercial  transactions  and  em- 
braced the  rules  under  which  commercial  associations  are  formed 
and  regulated.  The  translation  recited  that  the  code  of  com- 
merce was  in  force.  (Divisions  of  Customs  and  Insular  Affairs, 
October,  1899.)  Some  changes  were  subsequently  made  (laws 
of  Philippine  Commission,  1901),  as,  for  example,  the  repeal  of 
a  chapter  of  the  code  (p.  132),  but  no  changes  affecting  the 
methods  of  incorporating  companies  had  been  made  at  the  time 
of  the  incorporation  of  this  association. 

If,  at  the  time  of  the  cession  of  the  archipelago,  only  such 
laws  were  continued  in  force  as  did  not  involve  a  sovereign 
grant — the  right  to  any  kind  of  a  charter  under  local  regula- 
tions being  included — as  contended  by  the  defendants  upon  the 
eminent  authority  of  the  late  civil  governor  of  the  ceded  terri- 
tory, then  the  laws  granting  corporate  rights  became  entirely 
inoperative  after  the  cession  and  a  check  was  immediately  and 
indefinitely  put  upon  the  formation  of  partnerships,  general  and 
limited,  the  organization  of  joint  stock  companies  and  associa- 
tions of  different  kinds  incident  to  the  commercial  and  indus- 
trial life  of  the  ceded  country  and  as  necessary  there  as  in  other 
parts  of  the  world. 

The  general  rule  of  international  law  in  regard  to  all  con- 
quered or  ceded  territory  is  that  the  old  laws  continue  until 
repealed  by  the  proper  authorities.  (Woolsey's  Int.  Law,  sec. 
161.) 

In  conquered  or  ceded  countries  that  have  already  laws  of 
their  own,  the  king  may  alter  and  change  those  laws;  but  till 
he  does  actually  change  them,  the  ancient  laws  of  the  country 
remain,  unless  such  as  are  against  the  law  of  God,  and  in  the 
case  of  an  infidel  country.  (1  Blackstone,  107,  Lewis's  ed.) 

In  Chew  v.  Calvert  it  was  held  that  the  laws  of  Spain  con- 
tinued in  force  in  Mississippi  until  after  the  territorial  govern- 
ment was  organized  under  act  of  Congress  April  7,  1798.  (1 
Walk.,  Miss  R.,  56.) 

In  Norris  v.  Harris  (15  Cal.,  253)  it  was  held  that  the  pre- 
sumption that  the  common  law  prevails  in  those  States  original- 
ly colonies  of  England  does  not  extend  to  States  like  Florida, 


PHILIPPINE  &c.  CO.  v.  UNITED  STATES.        313 

Louisiana,  and  Texas,  where  organized  governments  existed  at 
the  time  of  their  accession  to  the  country,  which  laws  remained 
in  force  until  abrogated  and  new  laws  promulgated. 

In  Am.  Ins.  Co.  v.  Canter  (1  Pet.,  511),  while  discussing  the 
effect  of  the  cession  of  territory  by  treaty,  Chief  Justice  Mar- 
shall said : 

' '  On  such  transfer  of  territory  it  has  never  been  held  that  the 
relations  of  the  inhabitants  with  each  other  undergo  any  change. 
Their  relations  with  their  former  sovereign  are  dissolved  and 
new  relations  are  created  between  them  and  the  government- 
which  has  acquired  their  territory.  The  same  act  which  trans- 
fers their  country  transfers  the  allegiance  of  those  who  remain 
in  it ;  and  the  law,  which  may  be  denominated  political,  is  neces- 
sarily changed,  although  that  which  regulates  the  intercourse 
and  general  conduct  of  individuals  remains  in  force  until  al- 
tered by  the  newly  created  power  of  the  State. "... 

Special  privileges,  grants,  or  franchises  flowing  from  the 
grace  and  pleasure  of  the  sovereign  in  favor  of  some  one  par- 
ticular person  or  body  distinguished  from  the  general  body  of 
the  inhabitants  are  the  things  forbidden.  It  needs  no  reference 
to  international  law  to  say  that  any  exercise  of  authority  by  the 
ceding  sovereignty,  after  cession,  could  not  have  force  with 
reference  to  such  things  as  grants  of  land,  or  the  bestowal  of 
special  franchises,  such  as  the  construction  of  roads,  the  keeping 
of  ferries,  and  the  erection  of  bridges  with  the  right  to  collect 
toll  upon  them.  These  are  grants  by  the  authority  of  the  State 
as  particular  privileges  which  look  to  the  promotion  and  protec- 
tion of  the  public  good.  But  the  municipal  laws  promulgated 
during  the  time  the  ceding  authority  existed  and  which  are 
generally  recognized  as  necessary  to  the  peace  and  good  order 
of  the  community  remained  in  full  force  and  effect.  Any  other 
rule  would  hold  in  abeyance  civil  functions  with  respect  to  the 
use,  enjoyment,  and  transfer  of  private  property  that  would 
lead  to  results  harmful  to  the  inhabitants  of  the  ceded  territory 
and  injurious  to  the  best  interests  and  authority  of  the  new 
sovereign  as  well.  This  is  something  that  has  not  been  tolerated 
in  modern  times. 

During  the  military  occupation,  and  while  a  state  of  war  yet 
existed  between  the  two  countries,  the  United  States  expressly 
recognized  the  continuance  of  the  municipal  laws  of  the  con- 
quered territory.  The  military  occupancy,  though  absolute  and 
supreme,  operated  only  upon  the  political  condition  of  the  peo- 


314    EFFECTS   OF  TRANSFER  OF  JURISDICTION. 

pie  without  affecting  private  rights  of  person  and  property. 
Under  these  municipal  laws  partnerships  were  formed  and  joint- 
stock  associations  organized,  and  the  ordinary  and  commercial 
transactions  of  the  country  proceeded,  as  nearly  alike  as  the 
changed  conditions  would  admit,  as  before.  And  after  peace 
was  declared  the  authority  of  the  United  States  was  directed  to 
be  exerted  for  the  security  of  the  persons  and  property  of  the 
people  of  the  islands  and  for  the  confirmation  of  all  their  pri- 
vate rights  and  relations.  The  municipal  laws  of  the  territories 
in  respect  to  these  private  rights  and  property  were  to  be  con- 
sidered as  continuing  in  force,  to  be  administered  by  the  ordi- 
nary tribunals  as  far  as  practicable.  (Presidents'  Messages,  10 
Richardson,  209,  220.) 

This  action  of  the  Government  merely  emphasized  the  dis- 
tinction existing  between  the  municipal  laws,  which  regulated 
and  protected  the  relations  of  the  many,  and  the  power  of  the 
sovereign,  which  only  could  grant  franchises  and  special  priv- 
ileges to  the  few.  Such  distinction  was  indicated  in  the  local 
law  classifying  judicial  persons  into  corporations,  associations, 
and  institutions  of  public  interest,  and  associations  of  private 
interest,  civil,  commercial,  or  industrial.  (Art.  35,  Civil  Code.) 
Pursuant  to  which  it  was  provided  that  the  civil  capacity  of 
corporations  should  be  governed  by  the  laws  creating  or  recog- 
nizing them — that  is  to  say,  by  their  charters  or  gifts  of  fran- 
chises— while  the  civil  capacity  of  private  associations  was  to  be 
determined  by  their  by-laws.  (Art.  38,  id.) 

The  things  prohibited  were  grants  or  concessions  of  public 
or  corporate  rights  or  franchises  for  the  construction  of  public 
or  quasi  public  works,  such  as  railroads,  tramways,  telegraph 
and  telephone  lines,  waterworks,  gas  works,  electric  light  lines, 
etc.  (Executive  order  of  December  22,  1898,  id.  221.) 

Independent  of  all  these  considerations  plaintiff  was  a  de 
facto  association  with  the  right  of  possession  and  the  right  to 
give  lawful  discharge  for  the  use  and  occupation  of  its  property. 
Governor  Taft  recognized  this,  going  so  far  as  to  say  that  plain- 
tiff could  probably  hold  title,  or,  in  any  event,  payment  to  it 
would  be  a  complete  defense  to  any  claim  made  by  the  Domin- 
ican friars,  because  their  dealings  with  the  corporation  would 
be  held  to  estop  them  from  denying  its  corporate  existence. 
(Off.  Letter  to  the  Maj.  Gen.,  Com.  Div.  of  the  Philippines, 
March  16,  1903.)  We  are  unable  to  see  why  plaintiff's  collec- 
tion of  the  rent  due  to  it  as  an  association  would  not  be  a  law- 


VILAS  v.  CITY  OF  MANILA.  315 

ful  acquittance  of  any  claim  against  the  occupants  of  the  prop- 
erty. The  incorporation  was  compatible  with  the  new  order  of 
things.  The  association  was  given  life  by  the  same  municipal 
law  that  was  authorized  to  create  either  a  general  or  a  limited 
partnership.  This  law  we  have  seen  was  neither  abrogated  nor 
impaired  by  the  change  of  government.  No  other  person  or 
association  of  persons  could  rightfully  claim  the  rental  value, 
and  payment  to  this  company  does  not  put  the  Government  in 
danger  of  paying  twice.  It  is  true  that  if  plaintiff  had  been 
dispossessed  the  new  occupants  could  set  up  against  a  claim 
for  rent  an  outstanding  title  in  another,  because  that  would  not 
preclude  the  occupants  from  showing  a  better  outstanding  title. 
But  this  defendants  have  not  done  and  do  not  propose  to  do 
further  than  to  say  that  the  real  parties  in  interest  are  the 
friars,  who  are  not  claiming.  .  .  .  Judgment  will  be  entered 
for  plaintiff. 


VILAS  v.  CITY  OF  MANILA. 

SUPKEME   COUBT    OF   THE   UNITED    STATES.       1911. 

220  U.  S.  345. 

Error  to  and  appeals  from  the  Supreme  Court  of  the  Philip- 
pine Islands. 

MR.  JUSTICE  LURTON  delivered  the  opinion  of  the  court. 

The  plaintiffs  in  error,  who  were  plaintiffs  below,  are  creditors 
of  the  city  of  Manila  as  it  existed  before  the  cession  of  the 
Philippine  Islands  to  the  United  States  by  the  treaty  of  Paris, 
December  10,  1898.  Upon  the  theory  that  the  city  under  its 
present  charter  from  the  government  of  the  Philippine  Islands 
is  the  same  juristic  person  and  liable  upon  the  obligations  of  the 
old  city,  these  actions  were  brought  against  it.  The  Supreme 
Court  of  the  Philippine  Islands  denied  relief,  holding  that  the 
present  municipality  is  a  totally  different  corporate  entity,  and 
in  no  way  liable  for  the  debts  of  the  Spanish  municipality. 

The  fundamental  question  is  whether,  notwithstanding  the 
cession  of  the  Philippine  Islands  to  the  United  States,  followed 
by  a  reincorporation  of  the  city,  the  present  municipality  is  li- 
able for  the  obligations  of  the  city  incurred  prior  to  the  cession 
to  the  United  States.  .  ,  . 


316    EFFECTS   OF  TRANSFER  OF  JURISDICTION. 

The  city  as  now  incorporated  has  succeeded  to  all  of  the  prop- 
erty rights  of  the  old  city  and  to  the  right  to  enforce  all  of  its 
causes  of  action.  There  is  identity  of  purpose  between  the 
Spanish  and  American  charters  and  substantial  identity  of  mu- 
nicipal powers.  The  area  and  the  inhabitants  incorporated  are 
substantially  the  same.  But  for  the  change  of  sovereignty 
which  has  occurred  under  the  treaty  of  Paris,  the  question  of 
the  liability  of  the  city  under  its  new  charter  for  the  debts  of 
the  old  city  would  seem  to  be  of  easy  solution.  The  principal 
question  would  therefore  seem  to  be  the  legal  consequence  of 
the  cession  referred  to  upon  the  property  rights  and  civil  obliga- 
tions of  the  city  incurred  before  the  cession.  And  so  the  ques- 
tion was  made  to  turn  in  the  court  below  upon  the  consequence 
of  a  change  in  sovereignty  and  a  reincorporation  of  the  city 
by  the  substituted  sovereignty.  .  .  . 

The  historical  continuity  of  a  municipality  embracing  the  in- 
habitants of  the  territory  now  occupied  by  the  city  of  Manila 
is  impressive.  Before  the  conquest  of  the  Philippine  Islands 
by  Spain,  Manila  existed.  The  Spaniards  found  on  the  spot 
now  occupied  a  populous  and  fortified  community  of  Moros. 
In  1571  they  occupied  what  was  then  and  is  now  known  as 
Manila,  and  established  it  as  a  municipal  corporation.  In  1574 
there  was  conferred  upon  it  the  title  of  "Illustrious  and  ever 
loyal  city  of  Manila."  From  time  to  time  there  occurred 
amendments,  and,  on  January  19,  1894,  there  was  reorganiza- 
tion of  the  city  government  under  a  royal  decree  of  that  date. 
Under  the  charter  there  was  power  to  incur  debts  for  municipal 
purposes  and  power  to  sue  and  be  sued.  The  obligations  here 
in  suit  were  incurred  under  the  charter  referred  to,  and  are 
obviously  obligations  strictly  within  the  provision  of  the  munic- 
ipal power.  To  pay  judgments  upon  such  debt  it  was  the  duty 
of  the  Ayuntamiento  of  Manila,  which  was  the  corporate  name 
of  the  old  city,  to  make  provision  in  its  budget. 

The  contention  that  the  liability  of  the  city  upon  such  obliga- 
tions was  destroyed  by  a  mere  change  of  sovereignty  is  obviously 
one  which  is  without  a  shadow  of  moral  force,  and,  if  true,  must 
result  from  settled  principles  of  rigid  law.  While  the  contracts  ' 
from  which  the  claims  in  suit  resulted  were  in  progress,  war 
between  the  United  States  and  Spain  ensued.  On  August  13, 
1898,  the  city  was  occupied  by  the  forces  of  this  Government 
and  its  affairs  conducted  by  military  authority.  On  July  31, 
1901,  the  present  incorporating  act  was  passed,  and  the  city 


VILAS  v.  CITY  OF  MANILA.  317 

since  that  time  has  been  an  autonomous  municipality.  The 
charter  in  force  is  act  183  of  the  Philippine  Commission  and 
now  may  be  found  as  chapters  68  to  75  of  the  Compiled  Acts 
of  the  Philippine  Commission.  .  .  . 

The  charter  contains  no  reference  to  the  obligations  or  con- 
tracts of  the  old  city. 

If  we  understand  the  argument  against  the  liability  here  as- 
serted, it  proceeds  mainly  upon  the  theory  that  inasmuch  as  the 
predecessor  of  the  present  city,  the  Ayuntamiento  of  Manila, 
was  a  corporate  entity  created  by  the  Spanish  government, 
when  the  sovereignty  of  Spain  in  the  islands  was  terminated  by 
the  treaty  of  cession,  if  not  by  the  capitulation  of  August  13, 
1908,  the  municipality  ipso  facto  disappeared  for  all  purposes. 
This  conclusion  is  reached  upon  the  supposed  analogy  to  the 
doctrine  of  principal  and  agent,  the  death  of  the  principal  end- 
ing the  agency.  So  complete  is  the  supposed  death  and  an- 
nihilation of  a  municipal  entity  by  extinction  of  sovereignty 
of  the  creating  State  that  it  was  said  in  one  of  the  opinions 
below  that  all  of  the  public  property  of  Manila  passed  to  the 
United  States,  "for  a  consideration,  which  was  paid,"  and  that 
the  United  States  was  therefore  justified  in  creating  an  abso- 
lutely new  municipality  and  endowing  it  with  all  of  the  assets 
of  the  defunct  city,  free  from  any  obligation  to  the  creditors  of 
that  city.  And  so  the  matter  was  dismissed  in  the  Trigas  Case 
by  the  Court  of  First  Instance,  by  the  suggestion  that  "the 
plaimff  may  have  a  claim  against  the  crown  of  Spain,  which 
has  received  from  the  United  States  payment  for  that  done  by 
the  plaintiff." 

We  are  unable  to  agree  with  the  argument.  It  loses  sight  of 
the  dual  character  of  municipal  corporations.  They  exercise 
powers  which  are  governmental  and  powers  which  are  of  a 
private  or  business  character.  In  one  character  a  municipal 
corporation  is  a  governmental  sub-division,  and  for  that  pur- 
pose exercises  by  delegation  a  part  of  the  sovereignty  of  the 
State.  In  the  other  character  it  is  a  mere  legal  entity  or  juristic 
person.  In  the  latter  character  it  stands  for  the  community 
in  the  administration  of  local  affairs  wholly  beyond  the  sphere 
of  the  public  purposes  for  which  its  governmental  powers  are 
conferred.  .  .  . 

In  view  of  the  dual  character  of  municipal  corporations  there 
is  no  public  reason  for  presuming  their  total  dissolution  as  a 
mere  consequence  of  military  occupation  or  territorial  cession. 


318    EFFECTS   OF   TRANSFER  OF  JURISDICTION. 

The  suspension  of  such  governmental  functions  as  are  obviously 
incompatible  with  the  new  political  relations  thus  brought  about 
may  be  presumed.  But  no  such  implication  may  be  reasonably 
indulged  beyond  that  result. 

Such  a  conclusion  is  in  harmony  with  the  settled  principles  of 
public  law  as  declared  by  this  and  other  courts  and  expounded 
by  the  text  books  upon  the  laws  of  war  and  international  law. 
Taylor,  International  Public  Law,  Sec.  578. 

That  there  is  a  total  abrogation  of  the  former  political  rela- 
tions of  the  inhabitants  of  the  ceded  region  is  obvious.  That  all 
laws  theretofore  in  force  which  are  in  conflict  with  the  political 
character,  constitution  or  institutions  of  the  substituted  sov- 
ereign lose  their  force,  is  also  plain.  Alvarez  v.  United  States, 
216  U.  S.  167.  But  it  is  equally  settled  in  the  same  public  law 
that  that  great  body  of  municipal  law  which  regulates  private 
and  domestic  rights  continues  in  force  until  abrogated  or 
changed  by  the  new  ruler.  In  Chicago,  Rock  Island  &  Pacific 
Railway  Co.  v.  McGlinn,  114  U.  S.  524,  546,  it  was  said : 

"  It  is  a  general  rule  of  public  law,  recognized  and  acted  upon 
by  the  United  States,  that  whenever  political  jurisdiction  and 
legislative  power  over  any  territory  are  transferred  from  one 
nation  or  sovereign  to  another,  the  municipal  laws  of  the  coun- 
try, that  is,  laws  which  are  intended  for  the  protection  of  pri- 
vate rights,  continue  in  force  until  abrogated  or  changed  by  the 
new  government  or  sovereign.  By  the  cession  public  property 
passes  from  one  government  to  the  other,  but  private  property 
remains  as  before,  and  with  it  those  municipal  laws  which  are 
designed  to  secure  its  peaceful  use  and  enjoyment.  As  a  matter 
of  course,  all  laws,  ordinances,  and  regulations  in  conflict  with 
the  political  character,  institutions  and  constitution  of  the  new 
government  are  at  once  displaced.  Thus,  upon  a  cession  of 
political  jurisdiction  and  legislative  power — and  the  latter  is 
involved  in  the  former — to  the  United  States,  the  laws  of  the 
country  in  support  of  an  established  religion,  or  abridging  the 
freedom  of  the  press,  or  authorizing  cruel  and  unusual  punish- 
ments, and  the  like,  would  at  once  cease  to  be  of  obligatory  force 
without  any  declaration  to  that  effect;  and  the  laws  of  the 
country  on  other  subjects  would  necessarily  be  superseded  by 
existing  laws  of  the  new  government  upon  the  same  matters. 
But  with  respect  to  other  laws  affecting  the  possession,  use  and 
transfer  of  property,  and  designed  to  secure  good  order  and 
peace  in  the  community,  and  promote  its  health  and  prosperity, 


NOTE.  319 

which  are  strictly  of  a  municipal  character,  the  rule  is  general, 
that  a  change  of  government  leaves  them  in  force  until,  by 
direct  action  of  the  new  government,  they  are  altered  or  re- 
pealed. .  .  ." 

That  the  United  States  might,  by  virtue  of  its  situation  under 
a  treaty  ceding  full  title,  have  utterly  extinguished  every  munic- 
ipality which  it  found  in  existence  in  the  Philippine  Islands 
may  be  conceded.  That  it  did  so  in  view  of  the  practice  of 
nations  to  the  contrary  is  not  to  be  presumed  and  can  only  be 
established  by  cogent  evidence.  .  .  . 

NOTE. — See  also:  Townsend  v.  Greeley  (1867),  5  Wallace,  326;  Merry- 
man  v.  Bourne  (1870),  9  Ib.  592;  More  v.  Steinbach  (1888),  127  U.  S. 
70;  Los  Angeles  Farming  and  Milling  Co.  v.  Los  Angeles  (1910),  217 
U.  S.  217,  and  the  cases  there  cited. 

In  practice  and  quite  apart  from  any  legal  theory,  the  effect  of  the 
transfer  of  jurisdiction  from  one  country  to  another  depends  much 
upon  the  size  of  the  population  of  the  district  in  question.  If  small 
it  is  not  likely  to  be  able  to  preserve  its  identity,  but  will  be  ab- 
sorbed by  the  annexing  state  and  will  take  the  latter's  system  of  law. 
The  old  system  will  continue  in  force  however  until  the  new  one  is 

* 

established.  The  transfer  of  jurisdiction  may  also  be  followed  by 
such  a  vclume  of  immigration  from  the  territory  of  the  new  sov- 
ereign as  to  alter  entirely  the  character  of  the  original  population, 
and  lead  to  the  introduction  of  a  new  legal  system.  A  change  of 
this  sort  occurred  in  Utah  after  its  transfer  from  Mexico  to  the 
United  States,  First  National  Bank  v.  Kinner  (1873),  (1  Utah,  100. 
If  the  newly  acquired  lands  are  entirely  without  a  civilized  popula- 
tion, it  is  the  Anglo-American  doctrine  that  British  or  American 
citizens  occupying  such  districts  take  their  own  law  with  them,  or  as 
expressed  by  Chief  Justice  Holt  in  Bldnkard  v.  Galdy  (1693),  2 
Salkeld,  411,  "In  case  of  an  uninhabited  country  newly  found  out  by 
English  subjects,  all  laws  in  force  in  England  are  in  force  there." 

For  the  status  of  the  common  law  in  Massachusetts  see  the  opinion 
of  Chief  Justice  Shaw  in  Commonwealth  v.  Chapman  (1847),  13 
Metcalf  (Mass.),  68,  and  for  its  introduction  into  Oklahoma  see  Mc- 
Kennon  v.  Winn  (1893),  1  Ok.  327.  For  the  conflict  between  the 
Dutch  and  the  English  law  after  the  cession  of  New  York  to  the 
English,  see  Mortimer  v.  New  York  Elevated  Railroad  Co.  (1889),  6 
N.  Y.  Supp.  898. 

Upon  the  transfer  of  jurisdiction  the  new  sovereign  succeeds  to  all 
the  rights  of  his  predecessor,  but  he  takes  subject  to  the  limitations 
of  his  own  constitution.  The  ceding  government  cannot  increase 
the  powers  of  another  government  by  purporting  to  convey  to  it 
powers  which  it  cannot  constitutionally  exercise,  New  Orleans  v. 
United  States  (1836),  10  Peters,  662;  Pollard  v.  Hagan  (1845),  3 
Howard,  212.  Any  provision  of  the  local  law  which  is  repugnant  to 
the  law  of  the  new  sovereignty  may  be  nullified  by  the  transfer  of 


320    EFFECTS   OF  TRANSFER  OF  JURISDICTION. 

jurisdiction.  Hence  on  the  cession  of  Minorca  to  Great  Britain,  it 
was  held  that  torture,  which  was  authorized  by  the  old  law,  could 
not  be  inflicted  by  the  British  governor,  Fabrigas  v.  Mostyn  (1773), 
20  State  Trials,  181.  The  transfer  may  create  a  situation  which 
necessarily  renders  certain  laws  inoperative.  Thus  on  the  cession  of 
Texas  to  the  United  States,  the  incompetency  of  an  American  citizen 
to  hold  land  in  Texas  because  of  alienage  ceased  to  exist,  Osterman 
v.  Baldwin  (1868),  6  Wallace,  116.  The  laws  of  the  ceding  state 
regulating  the  disposition  of  the  public  domain  or  the  discharge  of 
governmental  functions  in  the  ceded  territory  depart  with  the  au- 
thority from  which  they  emanated,  Harcourt  v.  Gailliard  (1827),  12 
Wheaton,  523;  United  States  v.  Vallejo  (1862),  1  Black,  541;  More  v. 
Steinbach  (1888),  127  U.  S.  70;  Ely's  Administrator  v.  United  States 
(1898),  171  U.  S.  220. 

The  transfer  of  jurisdiction  does  not  in  itself  alter  the  local  laws 
which  are  in  force  in  the  ceded  territory  except  in  so  far  as  they  are 
in  conflict  with  the  laws  or  institutions  of  the  new  sovereign,  Camp- 
bell v.  Hall  (1774),  Cowper,  204;  Picton's  Case  (1804-1812),  30  State 
Trials,  226,  944;  Strother  v.  Lucas  (1838),  12  Peters,  410;  Leitens- 
dorfer  v.  Webb  (1858),  20  Howard,  176;  Barnett  v.  Barnett  (1897),  9 
New  Mexico,  205,  211.  On  the  whole  subject  see  Magoon,  Reports, 
351;  Hyde,  I,  201;  Moore,  Digest,  I,  304-311,  332-334. 


SECTION  2.    EFFECT  ON  PRIVATE  PROPERTY. 

THE  UNITED  STATES,  Appellants,  v.  JUAN  PERCHEMAN, 

Appellee. 

SUPBEME    COUBT    OF    THE    UNITED     STATES.      1833. 

7  Peters,  51. 

Appeal  from  the  superior  court  for  the  eastern  district  of 
Florida. 

On  the  17th  of  September,  1830,  Juan  Percheman  filed  in  the 
clerk's  office  of  the  superior  court  for  the  eastern  district  of 
Florida,  a  petition,  setting  forth  his  claim  to  a  tract  of  land 
containing  two  thousand  acres,  within  the  district  of  East 
Florida.  .  .  .  The  petitioner  stated  that  he  derived  his  title 
to  the  said  tract  of  land  under  a  grant  made  to  him  on  the  12th 
day  of  December,  1815,  by  governor  Estrada,  then  Spanish 
governor  of  East  Florida,  and  whilst  East  Florida  belonged  to 
Spain.  .  .  .  The  court  .  .  .  adjudged  .  .  .  "that  the 


UNITED  STATES  v.  PERCHEMAN.  321 

grant  is  valid,  .  .  .  and  .  .  .  it  is  confirmed."  The 
United  States  appealed  to  this  court. 

Mr.  Chief  Justice  MARSHALL  delivered  the  opinion  of  the 
court.  ... 

Florida  was  a  colony  of  Spain,  the  acquisition  of  which  by 
the  United  States  was  extremely  desirable.  It  was  ceded  by  a 
treaty  concluded  between  the  two  powers  at  Washington,  on  the 
,22d  day  of  February,  1819. 

The  second  article  contains  the  cession,  and  enumerates  its 
objects.  The  eighth  contains  stipulations  respecting  the  titles 
to  lands  in  the  ceded  territory. 

It  may  not  be  unworthy  of  remark,  that  it  is  very  unusual, 
even  in  cases  of  conquest,  for  the  conqueror  to  do  more  than  to 
displace  the  sovereign  and  assume  dominion  over  the  country. 
The  modern  usage  of  nations,  which  has  become  law,  would  be 
violated;  that  sense  of  justice  and  of  right  which  is  acknowl- 
edged and  felt  by  the  whole  civilized  world  would  be  outraged, 
if  private  property  should  be  generally  confiscated,  and  private 
rights  annulled.  The  people  change  their  allegiance;  their  re- 
lation to  their  ancient  sovereign  is  dissolved;  but  their  relations 
to  each  other,  and  their  rights  of  property,  remain  undisturbed. 
If  this  be  the  modern  rule  even  in  cases  of  conquest,  who  can 
doubt  its  application  to  the  case  of  an  amicable  cession  of  ter- 
ritory ?  Had  Florida  changed  its  sovereign  by  an  act  containing 
no  stipulation  respecting  the  property  of  individuals,  the  right 
of  property  in  all  those  who  became  subjects  or  citizens  of  the 
new  government  would  have  been  unaffected  by  the  change.  It 
would  have  remained  the  same  as  under  the  ancient  sovereign. 
The  language  of  the  second  article  conforms  to  this  general 
principle.  "His  catholic  majesty  cedes  to  the  United  States 
in  full  property  and  sovereignty,  all  the  territories  which  be- 
long to  him  situated  to  the  eastward  of  the  Mississippi,  by  the 
name  of  East  and  West  Florida."  A  cession  of  territory  is 
never  understood  to  be  a  cession  of  the  property  belonging  to 
its  inhabitants.  The  king  cedes  that  only  which  belonged  to 
him.  Lands  he  had  previously  granted  were  not  his  to  cede. 
Neither  party  could  so  understand  the  cession.  Neither  party 
could  consider  itself  as  attempting  a  wrong  to  individuals,  con- 
demned by  the  practice  of  the  whole  civilized  world.  The  ces- 
sion of  a  territory  by  its  name  from  one  sovereign  to  another, 
conveying  the  compound  idea  of  surrendering  at  the  same  time 
the  lands  and  the  people  who  inhabit  them,  would  be  necessarily 


322    EFFECTS   OF  TRANSFER  OF  JURISDICTION. 

understood  to  pass  the  sovereignty  only,  and  not  to  interfere 
with  private  property.  If  this  could  be  doubted,  the  doubt 
would  be  removed  by  the  particular  enumeration  which  follows. 
"The  adjacent  islands  dependent  on  said  provinces,  all  public 
lots  and  squares,  vacant  land,  public  edifices,  fortifications, 
barracks  and  other  buildings  which  are  not  private  property, 
archives  and  documents  which  relate  directly  to  the  property 
and  sovereignty  of  the  said  provinces,  are  included  in  this 
article."  .  .  . 

This  state  of  things  ought  to  be  kept  in  view  when  we  con- 
strue the  eighth  article  of  the  treaty,  and  the  acts  which  have 
been  passed  by  congress  for  the  ascertainment  and  adjustment 
of  titles  acquired  under  the  Spanish  government.  That  article 
in  the  English  part  of  it  is  in  these  words :  ' '  All  the  grants  of 
land  made  before  the  24th  of  January,  1818,  by  his  catholic 
majesty,  or  by  his  lawful  authorities,  in  the  said  territories  ceded 
by  his  majesty  to  the  United  States,  shall  be  ratified  and  con- 
firmed to  the  persons  in  possession  of  the  lands,  to  the  same  ex- 
tent that  the  said  grants  would  be  valid  if  the  territories  had 
remained  under  the  dominion  of  his  catholic  majesty." 

This  article  is  apparently  introduced  on  the  part  of  Spain, 
and  must  be  intended  to  stipulate  expressly  for  that  security  to 
private  property  which  the  laws  and  usages  of  nations  would, 
without  express  stipulation,  have  conferred.  .  .  .  Without 
it,  the  titles  of  individuals  would  remain  as  valid  under  the  new 
government  as  they  were  under  the  old;  and  those  titles, 
so  far  at  least  as  they  were  consummate,  might  be  asserted 
in  the  courts  of  the  United  States,  independently  of  this 
article.  .  .  .  The  decree  is  affirmed. 


ALVAREZ  Y  SANCHEZ  v.  UNITED  STATES. 

SUPREME  COUBT  OF  THE  UNITED  STATES.     1910. 
216  U.  S.  167. 

Appeal  from  the  Court  of  Claims. 

[In  1878  the  claimant  Sanchez  purchased  for  a  valuable  con- 
sideration the  office  known  as  "Numbered  Procurador  [Solicitor] 
of  the  Courts  of  First  Instance  of  the  capital  of  Porto  Rico"  in 


ALVAREZ  Y  SANCHEZ  v.  UNITED  STATES.     323 
perpetuity,  and  received  from  the  Governor  General  of  Porto 

* 

Rico  a  patent  which  was  confirmed  in  1881  by  a  patent  from  the 
King  of  Spain.  Porto  Rico  having  been  ceded  to  the  United 
States,  the  American  Military  Governor  on  April  30,  1900, 
issued  a  decree  abolishing  the  office  of  procurador.  This  decree 
was  ratified  by  Congress.  Sanchez  then  filed  a  complaint  in  the 
Court  of  Claims  for  the  purpose  of  recovering  from  the  United 
States  the  value  of  the  office  on  the  ground  that  its  abolition 
deprived  him  of  property  contrary  to  article  7  of  the  treaty  of 
peace  between  the  United  States  and  Spain  which  provided  that 
the  cession  should  not  "in  any  respect  impair  the  property  or 
rights  which  by  law  belong  to  the  peaceful  possession  of  prop- 
erty of  all  kinds."  The  complaint  was  held  bad  on  demurrer 
and  the  claimant  appealed.} 

MR.  JUSTICE  HARLAN  delivered  the  opinion  of  the  court.    .    .    . 

"We  do  not  think  that  the  present  claim  is  covered  by  the 
Treaty.  .  .  .  The  words  in  the  Treaty  "property  .  .  . 
of  private  individuals,"  evidently  referred  to  ordinary,  private 
property,  of  present,  ascertainable  value  and  capable  of  being 
transferred  between  man  and  man. 

When  the  United  States,  in  the  progress  of  the  war  with 
Spain,  took  firm,  military  possession  of  Porto  Rico,  and  the  sov- 
ereignty of  Spain  over  that  Island  and  its  inhabitants  and  their 
property  was  displaced,  the  United  States,  the  new  Sovereign, 
found  that  some  persons  claimed  to  have  purchased,  to  hold  in 
perpetuity,  and  to  be  entitled,  without  regard  to  the  public  will, 
to  discharge  the  duties  of  certain  offices  or  positions  which  were 
not  strictly  private  positions  in  which  the  public  had  no  interest. 
They  were  offices  of  a  quasi-public  nature,  in  that  the  incum- 
bents were  officers  of  court,  and  in  a  material  sense  connected 
with  the  administration  of  justice  in  tribunals  created  by  gov- 
ernment for  the  benefit  of  the  public.  It  is  inconceivable  that 
the  United  States,  when  it  agreed  in  the  Treaty  not  to  impair 
the  property  or  rights  of  private  individuals,  intended  to  rec- 
ognize, or  to  feel  itself  bound  to  recognize,  the  salability  of  such 
positions  in  perpetuity,  or  to  so  restrict  its  sovereign  authority 
that  it  could  not,  consistently  with  the  Treaty,  abolish  a  system 
that  was  entirely  foreign  to  the  conceptions  of  the  American 
people,  and  inconsistent  with  the  spirit  of  our  institutions. 
>  .  .  If,  originally,  the  claimant  lawfully  purchased,  in 
perpetuity,  the  office  of  Solicitor  (Procurador)  and  held  it  when 


324    EFFECTS   OF  TRANSFER  OF  JURISDICTION. 

Porto  Rico  was  acquired  by  the  United  States,  he  acquired-  and 
held  it  subject,  necessarily,  to  the  power  of  the  United  States  to 
abolish  it  whenever  it  conceived  that  the  public  interest  de- 
manded that  to  be  done.  ...  It  is  clear  that  the  claimant 
is  not  entitled  to  be  compensated  for  his  office  by  the  United 
States  because  of  its  exercise  of  an  authority  unquestionably 
possessed  by  it  as  the  lawful  sovereign  of  the  Island  and  its 
inhabitants.  The  abolition  of  the  office  was  not,  we  think,  in 
violation  of  any  provision  of  the  Constitution,  nor  did  it  in- 
fringe any  right  of  property  which  the  claimant  could  assert 
as  against  the  United  States.  .  .  .  The  judgment  of  the  Court 
of  Claims  must  be  affirmed.  It  is  so  ordered. 

NOTE. — The  rule  that  private  property  rights  are  not  affected  by  a 
mere  transfer  of  jurisdiction  is  operative  without  any  treaty  stipula- 
tion to  that  effect,  Leitensdorfer  v.  Webb  (1858),  20  Howard,  176; 
United  States  v.  Mereno  (1863),  1  Wallace,  400.  A  state  which  would 
violate  such  an  elemental  rule  of  justice  would  probably  not  feel  bound 
by  a  treaty.  No  construction  of  a  treaty  which  would  impair  those 
private  property  rights  of  its  inhabitants  recognized  by  the  laws  and 
usages  of  nations  should  be  adopted  further  than  its  words  require, 
Strother  v.  Lucas  (1838)  12  Peters,  410. 

While  the  rights  of  private  property  in  ceded  territory  are  not  af- 
fected by  the  cession,  the  new  sovereign  may  require  the  existence 
and  extent  of  such  rights  to  be  proved  in  a  prescribed  manner,  De  la 
Croix  v.  Chamberlain  (1827),  12  Wheaton,  599,  601;  United  States  v. 
Clarke  (1834),  8  Peters,  436;  Chouteau  v.  Eckhart  (1844),  2  Howard, 
344,  374;  Glenn  v.  United  States  (1852),  13  Howard,  250;  Tameling  v. 
U.  S.  Freehold  Co.  (1877),  93  U.  S.  644,  661;  Botiller  v.  Dominguez 
(1889),  130  U.  S.  238;  Astiazaran  v.  Santa  Rita  Land  and  Mining 
Co.  (1893),  148  U.  S.  80;  Ainsa  v.  New  Mexico  and  Arizona  Ry. 
(1899),  175  U.  S.  76;  Florida  r.  Furman  (1901),  180  U.  S.  402;  Barker 
v.  Harvey  (1901),  181  U.  S.  481. 

The  question  of  the  recognition  by  the  receiving  state  of  the 
private  property  rights  of  the  inhabitants  of  ceded  territory  arises 
with  great  frequency  in  connection  with  grants  which  individuals 
claim  to  have  been  made  to  them  by  the  ceding  state.  It  is  obvious 
that  a  sovereign  can  cede  nothing  with  which  he  has  already  parted, 
Mitchell  v.  United  States  (1835),  9  Peters,  711,  733.  The  validity  of  a 
.  grant  does  not  depend  upon  a  strict  compliance  with  every  legal  for- 
mality, United  States  v.  Auguisola  (18G3),  1  Wallace,  352.  If  a  grant 
is  derived  in  regular  form,  a  court  will  not  inquire  into  its  voidability 
for  equitable  considerations,  Jones  v.  McMasters  (1857),  20  Howard, 
8.  As  to  the  treatment  of  inchoate  grants,  see  Soulard  v.  United 
States  (1830),  4  Peters,  511;  Delassus  v.  United  States  (1835),  9 
Peters,  117.  As  to  conditional  grants  see  United  States  v.  Arrendondo 
(1832),  6  Peters  691;  Cessna  v.  United  States  (1898),  169  U.  S.  165. 
As  to  indefinite  grants  see  CPHara  v.  United  States  (1841),  15  Peters, 

I 


NOTE.  325 

274;  United  States  v.  Miranda  (1842),  16  Peters,  153;  Dent  v.  Em- 
meger  (1872),  14  Wallace,  308.  As  to  void  grants  see  Harcourt  v. 
Gaillard  (1827),  12  Wheaton,  523;  Coffee  v.  Groover  (1887),  123  U.  S. 
1;  More  v.  Steinbach  (1888),  127  U.  S.  70.  As  to  forfeited  grants, 
see  United  States  v.  Repentigny  (1866),  5  Wallace,  211.  As  to  con- 
flicting grants  under  former  sovereigns,  see  Doe  v.  Esclava  (1849),  9 
Howard,  421. 

The  statement  made  in  Cessna  v.  United  States  (1898),  169  U.  S. 
165,  186,  that  "it  is  the  duty  of  a  nation  receiving  a  cession  of  ter- 
ritory to  respect  all  rights  of  property  as  those  rights  were  recog- 
nized by  the  nation  making  the  cession,"  appears  to  be  too  broad, 
and  in  fact  has  not  been  followed  by  the  Supreme  Court  in  later 
cases.  In  1728  the  government  of  Spain  had  sold  at  public  auction 
the  office  of  high  sheriff  of  Havana  which  was  declared  to  be  per- 
petual and  hereditary  and  which  carried  with  it  a  lucrative  monopoly. 
Upon  the  American  occupation  of  Cuba,  the  Military  Governor,  Gen- 
eral Brooke,  abolished  the  office  and  he  was  sustained  by  the  Secretary 
of  War,  Mr.  Root.  When  the  claimant  brought  an  action  against  the 
Military  Governor,  the  Supreme  Court  decided  against  him  and  said, 
"We  agree  with  the  opinion  of  the  Secretary  of  War,  that  the  plain- 
tiff had  no  property  that  survived  the  extinction  of  the  sovereignty 
of  Spain,"  O'Reilly  de  Camara  v.  Brooke  (1908),  209  U.  S.  45.  In 
the  case  of  Alvarez  Y.  Sanchez  v.  United  States  (1910),  216  U.  S. 
167,  the  court  explicitly  rejects  the  argument  that  since  the  office  in 
question  was  regarded  as  property  under  Spanish  law,  it  should  be 
so  regarded  by  the  United  States.  Although  the  nations  are  in 
agreement  as  to  most  forms  of  property,  certain  exceptions  are 
obvious.  If  Russia,  while  the  institution  of  serfdom  still  existed, 
had  ceded  territory  to  Turkey,  property  rights  in  the  serfs  in  the 
ceded  territory  would  probably  not  have  been  disturbed,  but  if  a 
similar  cession  had  been  made  to  Sweden,  it  is  not  to  be  supposed 
that  such  property  rights  would  have  survived.  If  a  monopoly  for  the 
sale  of  liquor  had  been  granted  in  one  of  the  French  West  Indies, 
which  monopoly  had  been  declared  to  be  perpetual  and  subject  to  in- 
heritance and  sale,  the  transfer  of  the  island  to  the  United  States 
would  nevertheless  ipso  facto  extinguish  the  monopoly.  In  other 
words,  the  recognition  of  rights  of  property  in  ceded  territory  de- 
pends partly  upon  the  nature  of  the  property  and  the  public  policy  of 
the  receiving  state. 

For  discussion  of  the  effect  on  private  rights  of  a  transfer  of  juris- 
diction see  Bordwell,  "Purchasable  Offices  in  Ceded  Territory",  Am. 
Jour.  Int.  Law,  III,  119  (an  able  adverse  comment  on  Alvarez  Y. 
Sanchez  v.  United  States  (1910),  216  U.  S.  167);  Sayre,  "Change  of 
Sovereignty  and  Private  Ownership  of  Land,"  Am  Jour.  Int.  Law, 
XII,  475  (an  excellent  treatment) ;  Magoon,  Reports,  177,  194,  305,  351, 
374,  541,  650;  Hyde,  I,  235;  Moore,  Digest,  I,  414. 


CHAPTER  IX. 

THE  PACIFIC  RELATIONS  OF  STATES. 

SECTION  1.    DIPLOMATIC  AND  CONSULAR  REPRESENTATIVES. 

BARBUIT'S  CASE. 

COURT  OF  CHANCERY  or  ENGLAND.     1737. 

Williams,  Cases  in  Equity  during  the  Time  of  Lord  Chancellor  Talbot, 

281. 

Barbuit  had  a  commission,  as  agent  of  commerce  from  the 
King  of  Prussia  in  Great  Britain,  in  the  year  1717,  which  was 
accepted  here  by  the  Lords  Justices  when  the  King  was  abroad. 
After  the  late  King's  demise  his  commission  was  not  renewed 
until  1735  and  then  it  was,  and  allowed  in  a  proper  manner; 
but  with  the  recital  of  the  powers  given  him  in  the  commission, 
and  allowing  him  as  such.  These  commissions  were  directed 
generally  to  all  the  persons  whom  the  same  should  concern  and 
not  to  the  King:  and  his  business  described  in  the  commissions 
was,  to  do  and  execute  what  his  Prussian  Majesty  should  think 
fit  to  order  with  regard  to  his  subjects  trading  in  Great  Britain ; 
to  present  letters,  memorials,  and  instruments  concerning  trade, 
to  such  persons,  and  at  such  places,  as  should  be  convenient,  and 
to  receive  resolutions  thereon ;  and  thereby  his  Prussian  Majesty 
required  all  persons  to  receive  writings  from  his  hands,  and 
give  him  aid  and  assistance.  Barbuit  lived  here  near  twenty 
years,  and  exercised  the  trade  of  a  tallow-chandler,  and  claimed 
the  privilege  of  an  ambassador  or  foreign  minister,  to  be  free 
from  arrests.  After  hearing  counsel  on  this  point, 

LORD  CHANCELLOR  [TALBOT.  The  first  part  of  the  opinion 
is  quoted  in  In  re  Republic  of  Bolivia  Exploration  Syndicate 
Limited,  [1914]  1  Ch.  139,  ante,  221]. 

The  question  is,  whether  the  defendant  is  such  a  person  as 
7  Anne,  cap.  10,  describes,  which  is  only  declaratory  of  the 
antient  universal  jus  gentium;  the  words  of  the  statute  are 
ambassadors  or  other  public  Ministers,  and  the  exception  of 

326 


BARBUIT'S  CASE.  327 

persons  trading  relates  only  to  their  servants;  the  parliament 
never  imagining  that  the  ministers  themselves  would  trade.  I 
do  not  think  the  words  ambassadors,  or  other  public  ministers, 
are  synonymous.  I  think  that  the  word  ambassadors  in  the  act 
of  parliament,  was  intended  to  signify  ministers  sent  upon  ex- 
traordinary occasions,  which  are  commonly  called  ambassadors 
extraordinary;  and  public  ministers  in  the  act  take  in  all  others 
who  constantly  reside  here ;  and  both  are  intitled  to  these  privi- 
leges. The  question  is,  whether  the  defendant  is  within  the 
latter  words?  It  has  been  objected  that  he  is  not  a  public 
minister,  because  he  brings  no  credentials  to  the  King.  Now 
although  it  be  true  that  this  is  the  most  common  form,  yet  it 
would  be  carrying  it  too  far  to  say,  that  these  credentials  are 
absolutely  necessary ;  because  all  nations  have  not  the  same 
forms  of  appointment.  It  has  been  said,  that  to  make  him  a 
public  minister  he  must  be  imployed  about  state*  affairs.  In 
which  case,  if  state  affairs  are  used  in  opposition  to  commerce, 
it  is  wrong:  but  if  only  to  signify  the  business  between  nation 
and  nation  the  proposition  is  right:  for,  trade  is  a  matter  of 
state,  and  of  a  public  nature,  and  consequently  a  proper  subject 
for  the  imployment  of  an  ambassador.  In  treaties  of  commerce 
those  imployed  are  as  much  public  ministers  as  any  others;  and 
the  reason  for  their  protection  holds  as  strong:  and  it  is  of  no 
weight  with  me  that  the  defendant  was  not  to  concern  himself 
about  other  matters  of  state,  if  he  was  authorized  as  a  public 
minister  to  transact  matters  of  trade.  It  is  not  necessary  that 
a  minister's  commission  should  be  general  to  intitle  him  to  pro- 
tection; but  it  is  enough  that  he  is  to  transact  any  one  partic- 
ular thing  in  that  capacity,  as  every  ambassador  extraordinary 
is;  or  to  remove  some  particular  difficulties,  which  might  other- 
wise occasion  war.  But  what  creates  my  difficulty  is,  that  I  do 
not  think  he  is  intrusted  to  transact  affairs  between  the  two 
crowns:  the  commission  is,  to  assist  his  Prussian  Majesty's  sub- 
jects here  in  their  commerce ;  and  so  is  the  allowance.  Now  this 
gives  him  no  authority  to  intermeddle  with  the  affairs  of  the 
King :  which  makes  his  employment  to  be  in  the  nature  of  a  con- 
sul. And  although  he  is  called  only  an  agent  of  commerce,  I 
do  not  think  the  name  alters  the  case.  Indeed  there  are  some 
circumstances  that  put  him  below  a  consul;  for,  he  wants  the 
power  of  judicature,  which  is  commonly  given  to  consuls.  Also 
their  commission  is  usually  directed  to  the  prince  of  the  coun- 
try ;  which  is  not  the  present  case :  but  at  most  he  is  only  a  con- 


328         THE  PACIFIC  RELATIONS  OF  STATES. 

sul. 

It  is  the  opinion  of  Barbeyrac,  Wincquefort  and  others,  that 
a  consul  is  not  intitled  to  the  Jus  Gentium  belonging  to  am- 
bassadors. 

And  as  there  is  no  authority  to  consider  the  defendant  in 
any  other  view  than  as  a  consul,  unless  I  can  be  satisfied  that 
those  acting  in  that  capacity  are  intitled  to  the  Jus  Gentium, 
I  cannot  discharge  him.  .  .  . 


IN  RE  BAIZ,  PETITIONER. 

SUPREME  COTJET  OF  THE  UNITED  STATES.    1890. 
135  U.  S.  403. 

[An  action  for  libel  having  been  instituted  in  the  United 
States  District  Court  against  Jacob  Baiz,  the  latter  set  up  a 
plea  to  the  jurisdiction  on  the  ground  that  in  the  absence  of  the 
Minister  of  the  Republic  of  Guatemala,  he  was  the  acting  min- 
ister of  Guatemala  and  hence  not  within  the  jurisdiction  of  the 
court.  Mr.  Baiz  was  a  citizen  of  the  United  States,  and  since 
1887  had  been  Consul  General  of  Guatemala  in  New  York.  In 
1889,  the  Minister  of  Guatemala  informed  the  Secretary  of  State 
that  he  was  obliged  to  return  to  his  home  for  a  short  time  and 
said:  "Meanwhile  I  beg  your  Excellency  to  please  allow  that 
the  Consul  General  of  Guatemala  and  Honduras  in  New  York, 
Mr.  Jacob  Baiz,  should  communicate  to  the  office  of  the  Secre- 
tary of  State  any  matter  whatever  relating  to  the  peace  of  Cen- 
tral America,  that  should  without  delay  be  presented  to  the 
knowledge  of  your  Excellency."  Accordingly  the  Secretary  of 
State  informed  Mr.  Baiz,  ''Consul  General  of  Guatemala  and 
Honduras,"  that  he  would  "have  pleasure  in  receiving  any 
communication  in  relation  to  Central  America,  of  which  you 
may  be  made  the  channel,  as  intimated  by  Senor  Lainfiesta." 
Upon  the  appointment  of  Mr.  Blaine  as  Secretary  of  State 
official  notice  was  sent  to  "Senor  Don  Jacob  Baiz,  in  charge  of 
the  legations  of  Guatemala,  Salvador,  and  Honduras,"  who 
acknowledged  receipt  of  the  notice  in  a  communication  signed 
"Jacob  Baiz,  Consul  General."  A  month  later,  the  Department 
of  State  addressed  another  communication  to  "Senor  Don  Jacob 
Baiz,  in  charge  of  the  business  of  the  legations  of  Guatemala, 


IN  RE  BAIZ.  329 

Salvador  and  Honduras."  In  1886  the  Government  of  Hon- 
duras appointed  Mr.  Baiz  to  be  its  charge  d'affaires  in  the 
United  States,  but  the  Secretary  of  State  declined  to  receive 
him  in  that  capacity  on  the  ground  that  it  was  contrary  to 
American  practice  to  recognize  American  citizens  as  the  accred- 
ited diplomatic  representatives  of  foreign  powers.  Later,  when 
Mr.  Baiz  inquired  whether  he  would  be  recognized  as  charge 
d'affaires  ad  hoc  or  diplomatic  agent  of  Honduras  during  the 
absence  of  the  minister,  the  Secretary  of  State  replied : 

"It  is  not  the  purpose  of  the  Department  to  regard  the  sub- 
stitutionary  agency,  which  it  cheerfully  admits  in  your  case,  as 
conferring  upon  you  personally  any  diplomatic  status  whatever. 
Your  agency  is  admitted  to  be  such  only  as  is  compatible  with 
the  continued  existence  of  a  vacancy  in  the  diplomatic  repre- 
sentation of  Honduras  in  the  United  States.  To  recognize  you 
as  charge  d'affaires  ad  hoc  would  be  to  announce  that  the  va- 
cancy no  longer  existed,  and  that  diplomatic  representation  was 
renewed  in  your  person.  It  is  a  common  thing  to  resort  to  a 
temporary  agency,  such  as  yours,  in  the  conduct  of  the  business 
of  a  mission.  A  foreign  minister,  on  quitting  the  country, 
often  leaves  the  affairs  of  his  office  in  the  friendly  charge  of  the 
minister  of  another  country,  but  the  latter  does  not  thereby  be- 
come the  diplomatic  agent  of  the  government  in  whose  behalf 
he  exerts  his  good  offices.  The  relation  established  is  merely 
one  of  courtesy  and  comity.  The  same  thing  occurs  when  the 
temporary  good  offices  of  a  consul  are  resorted  to.  In  neither 
case  is  a  formal  credence,  ad  hoc  or  ad  interim,  necessary. 

The  District  Court  having  denied  the  defendant's  motion 
to  dismiss  the  suit  for  lack  of  jurisdiction,  he  made  application 
to  the  Supreme  Court  for  a  rule  to  show  cause  why  a  writ  of 
prohibition  should  not  issue  to  the  judge  of  the  District  Court 
prohibiting  him  from  proceeding  further  in  such  action,  or,  in 
the  alternative,  for  a  writ  of  mandamus  commanding  the  judge 
to  enter  an  order  dismissing  the  cause  for  the  reason  that  the 
Supreme  Court  possessed  sole  jurisdiction  thereof.  A  rule 
having  issued  to  show  cause,  the  judge  of  the  District  Court 
transmitted  the  record  and  opinion  in  the  case  and  submitted 
to  the  Supreme  Court  whether  he  should  take  further  cogniz- 
ance of  the  case  or  should  dismiss  it.] 

MR.  CHIEF  JUSTICE. FULLER  delivered  the  opinion  of  the  court. 


330          THE  PACIFIC  RELATIONS  OF  STATES. 

Under  section  2,  Art.  II,  of  the  Constitution,  the  President 
is  vested  with  power  to  "appoint  ambassadors,  other  public 
ministers  and  consuls,"  and  by  section  3  it  is  provided  that  "he 
shall  receive  ambassadors  and  other  public  ministers." 

These  words  are  descriptive  of  a  class  existing  by  the  law 
of  nations,  and  apply  to  diplomatic  agents  whether  accredited 
by  the  United  States  to  a  foreign  power  or  by  a  foreign  power 
to  the  United  States.  .  .  .  These  agents  may  be  called  am- 
bassadors, envoys,  ministers,  commissioners,  charges  d'affaires, 
agents,  or  otherwise,  but  they  possess  in  substance  the  same  func- 
tions, rights  and  privileges  as  agents  of  their  respective  govern- 
ments for  the  transaction  of  its  diplomatic  business  abroad. 
Their  designations  are  chiefly  significant  in  the  relation  of  rank, 
precedence  or  dignity.  7  Opinions  Atty.  Gen.  (Gushing),  186. 

Hence,  when  in  subdivision  fifth  of  section  1674  of  the  Revised 
Statutes  we  find  "diplomatic  officer"  defined  as  including  "am- 
bassadors, envoys  extraordinary,  ministers  plenipotentiary, 
ministers  resident,  commissioners,  charges  d'affaires,  agents  and 
secretaries  of  legation,  and  none  others,"  we  understand  that  to 
express  the  view  of  Congress  as  to  what  are  included  within  the 
term  "public  ministers,"  although  the  section  relates  to  diplo- 
matic officers  of  the  United  States. 

But  the  scope  of  the  words  "public  ministers"  is  defined  in 
the  legislation  embodied  in  Title  XLVIL,  "Foreign  Relations," 
Rev.  Stat.,  2d  ed.  783.  Section  4062  provides  that  "every  per- 
son who  violates  any  safe  conduct  or  passport  duly  obtained 
and  issued  under  authority  of  the  United  States;  or  who  as- 
saults, strikes,  wounds,  imprisons  or  in  any  other  manner  offers 
violence  to  the  person  of  a  public  minister,  in  violation  of  the 
law  of  nations,  shall  be  imprisoned  for  not  more  than  three 
years,  and  fined,  at  the  discretion  of  the  court."  Section  4063 
enacts  that  whenever  any  writ  or  process  is  sued  out  or  prose- 
cuted by  any  person  in  any  court  of  the  United  States,  or  of  a 
State,  or  by  any  judge  or  justice,  whereby  the  person  of  any 
public  minister  of  any  foreign  prince  or  state,  authorized  and 
received  as  such  by  the  President,  or  any  domestic  or  domestic 
servant  of  any  such  minister,  is  arrested  or  imprisoned,  or  his 
goods  or  chattels  are  distrained,  seized  or  attached,  such  writ  or 
process  shall  be  deemed  void.  Section  4064  imposes  penalties  for 
suing  out  any  writ  or  process  in  violation  of  the  preceding  sec- 
tion ;  and  section  4065  says  that  the  two  preceding  sections  shall 
not  apply  to  any  case  where  the  person  against  whom  the  process 


IN  HE  BAIZ.  331 

is  issued  is  a  citizen  or  inhabitant  of  the  United  States  "in  the 
service  of  a  public  minister,"  and  process  is  founded  upon  a 
debt  contracted  before  he  entered  upon  such  service;  nor  shall 
the  preceding  section  apply  to  any  case  where  the  person 
against  whom  the  process  is  issued  is  a  "domestic  servant  of  a 
public  minister,"  unless  the  name  of  the  servant  has  been  reg- 
istered and  posted  as  therein  prescribed. 

Section  4130,  which  is  the  last  section  of  the  title,  is  as  follows : 
"The  word  'minister,'  when  used  in  this  title,  shall  be  under- 
stood to  mean  the  person  invested  with,  and  exercising,  the 
principal  diplomatic  functions.  The  word  'consul'  shall  be  un- 
derstood to  mean  any  person  invested  by  the  United  States  with, 
and  exercising,  the  functions  of  consul  general,  vice-consul  gen- 
eral, consul  or  vice-consul." 

Sections  4062,  4063,  4064  and  4065  were  originally  sections 
25,  26,  27  and  28  of  the  Crimes  Act  of  April  30,  1790,  c.  9, 
1  Stat.  118 ;  and  these  were  drawn  from  the  statute  7  Anne, 
c.  12,  which  was  declaratory  simply  of  the  law  of  nations,  which 
Lord  Mansfield  observed,  in  Heathfield  v.  Chilton,  4  Burr,  2015, 
2016,  the  act  did  not  intend  to  alter  and  could  not  alter. 

In  that  case,  involving  the  discharge  of  the  defendant  from 
custody,  as  a  domestic  servant  to  the  minister  of  the  Prince 
Bishop  of  Liege,  Lord  Mansfield  said :  "I  should  desire  to  know 
in  what  manner  this  minister  was  accredited — certainly,  he  is 
not  an  ambassador,  which  is  the  first  rank — envoy,  indeed,  is  a 
second  class;  but  he  is  not  shown  to  be  even  an  envoy.  He  is 
called  'minister,'  't  is  true;  but  minister  (alone)  is  an  equivocal 
term."  The  statute  of  Anne  was  passed  in  consequence  of  the 
arrest  of  an  ambassador  of  Peter  the  Great  for  debt,  and  the 
demand  by  the  Czar  that  the  sheriff  of  Middlesex  and  all  others 
concerned  in  the  arrest  should  be  punished  with  instant  death, 
1  Bl.  Com.  254 ;  and  it  was  in  reference  to  this  that  Lord  Ellen- 
borough,  in  Viveash  v.  Becker,  3  M.  &  S.  284,  where  it  was  held 
that  a  resident  merchant  of  London,  who  is  appointed  and  acts 
as  consul  to  a  foreign  prince,  is  not  exempt  from  arrest  on 
mesne  process,  remarked:  "I  cannot  help  thinking  that  the 
act  of  Parliament,  which  mentions  only  'ambassadors  and  pub- 
lic ministers,'  and  which  was  passed  at  a  time  when  it  was  an 
object  studiously  to  comprehend  all  kinds  of  public  ministers 
entitled  to  these  privileges,  must  be  considered  as  declaratory, 
not  only  of  what  the  law  of  nations  is,  but  of  the  extent  to 
which  that  law  is  to  be  carried.' 


332          THE  PACIFIC  RELATIONS  OF  STATES. 

Three  cases  are  cited  by  counsel  for  petitioner  arising  under 
or  involving  the  act  of  1790.  In  United  States  v.  Liddle,  2 
"Wash.  C.  C.  205,  in  the  case  of  an  indictment  for  an  assault 
and  battery  on  a  member  of  a  foreign  legation,  it  was  held  that 
the  certificate  of  the  Secretary  of  State,  dated  subsequently  to 
the  assault  and  battery,  is  the  best  evidence  to  prove  the  diplo- 
matic character  of  a  person  accredited  as  a  minister  by  the 
government  of  the  United  States.  The  certificate  from  the  Sec- 
retary of  State,  Mr.  Madison,  stated  that  "when  Mr.  Feronda 
produced  to  the  President  his  credentials  as  charge  des  affaires 
of  Spain,  he  also  introduced  De  Lima,  as  a  gentleman  attached 
to  the  legation  and  performing  the  duties  of  secretary  of  lega- 
tion," and  the  certificate  was  held  to  be  the  best  evidence  to 
prove  that  Feronda  was  received  and  accredited,  and  that  at 
the  same  time  De  Lima  was  presented  and  received  as  secretary 
attached  to  the  legation.  In  United  States  v.  Ortega,  4  "Wash. 
C.  C.  531,  there  was  produced  in  court  an  official  letter  from 
the  Spanish  minister  to  the  Secretary  of  State,  informing  him 
that  he  had  appointed  Mr.  Salmon  charge  d'affaires;  a  letter 
from  the  minister  to  Mr.  Salmon;  a  letter  from  the  Secretary 
of  State  addressed  to  the  Spanish  minister,  recognizing  the 
character  of  Mr.  Salmon;  two  letters  from  the  Secretary  of 
State  addressed  to  Mr.  Salmon  as  charge  d'affaires;  and  the 
deposition  of  the  chief  clerk  of  the  State  Department  that  Mr. 
Salmon  was  recognized  by  the  President  as  charge  d  'affaires,  and 
was  accredited  by  the  Secretary  of  State.  In  United  States  v. 
Benner,  Baldwin,  234,  the  court  was  furnished  with  a  certifi- 
cate from  the  Secretary  of  State  that  the  Danish  minister  had 
by  letter  informed  the  department  that  Mr.  Brandis  had  arrived 
in  this  country  in  the  character  of  attache  to  the  legation,  and 
that  said  Brandis  had  accordingly,  since  that  date,  been  recog- 
nized by  the  department  as  attached  to  the  legation  in  that 
character. 

These  cases  clearly  indicate  the  nature  of  the  evidence  proper 
to  establish  whether  a  person  is  a  public  minister  within  the 
meaning  of  the  Constitution  and  the  laws,  and  that  the  inquiry 
before  us  may  be  answered  by  such  evidence,  if  adduced. 

Was  Consul  General  Baiz  a  person  "invested  with  and  exer- 
cising the  principal  diplomatic  functions,"  within  section  4130, 
or  a  "diplomatic  officer,"  within  section  1674?  His  counsel 
claim  in  their  motion  that  he  was  "the  acting  minister  or 
charge  d'affaires  of  the  Republics  of  Guatemala,  Salvador  and 


IN  RE  BAIZ.  333 

Honduras  in  the  United  States,"  and  so  recognized  by  the  State 
Department,  and  that  he  exercised  diplomatic  functions  as  such, 
and  therefore  was  a  public  minister,  within  the  statute. 

By  the  Congresses  of  Vienna  and  Aix-la-Chapelle  four  dis- 
tinct kinds  of  representation  were  recognized,  of  which  the 
fourth  comprised  charges  d'affaires,  who  are  appointed  by  the 
minister  of  foreign  affairs,  and  not  as  the  others,  nominally  or 
actually  by  the  sovereign.  Under  the  regulations  of  this  Govern- 
ment the  representatives  of  the  United  States  have  heretofore 
been  ranked  in  three  grades,  the  third  being  charges  d'affaires. 
Secretaries  of  legation  act  ex  officio  as  charges  d'affaires  ad 
interim,  and  in  the  absence  of  the  secretary  of  legation  the  Sec- 
retary of  State  may  designate  any  competent  person  to  act  ad 
interim,  in  which  case  he  is  specifically  accredited  by  letter  to 
the  minister  for  foreign  affairs. 

"Wheaton  says:  "Charges  d'affaires,  accredited  to  the  min- 
isters of  foreign  affairs  of  the  court  at  which  they  reside,  are 
either  charges  d'affaires  ad  hoc,  who  are  originally  sent  and 
accredited  by  their  governments,  or  charges  d'affaires  ad  in- 
terim, substituted  in  the  place  of  the  minister  of  their  respective 
nations  during  his  absence."  Elements  Int.  Law  (8th  ed.), 
§  215. 

Ch.  de  Martens  explains  that  "charges  d'affaires  ad  hoc  on 
permanent  mission  are  accredited  by  letters  transmitted  to  the 
minister  of  foreign  affairs.  Charges  d'affaires  ad  interim  are 
presented  as  such  by  the  minister  of  the  first  or  second  class 
when  he  is  about  to  leave  his  position  temporarily  or  perma- 
nently." Guide  Diplomatique,  Vol.  I,  p.  61,  §  16. 

"They,"  observes  Twiss  in  his  Law  of  Nations,  §  192,  "are 
orally  invested  with  the  charge  of  the  embassy  or  legation  by 
the  ambassador  or  minister  himself,  to  be  exercised  during  his 
absence  from  the  seat  of  his  mission.  They  are  accordingly 
announced  in  this  character  by  him  before  his  departure  to  the 
minister  of  foreign  affairs  of  the  court  to  which  he  is  accred- 
ited." 

Diplomatic  duties  are  sometimes  imposed  upon  consuls,  but 
only  in  virtue  of  the  right  of  a  government  to  designate  those 
who  shall  represent  it  in  the  conduct  of  international  affairs,  1 
Calvo,  Droit  Int.  586,  2d  ed.,  Paris,  1870,  and  among  the  numer- 
ous authorities  on  international  laws,  cited  and  quoted  from  by 
petitioner's  counsel,  the  attitude  of  consuls,  on  whom  this  func- 


334        THE  PACIFIC  RELATIONS  OF  STATES. 

tion  is  occasionally  conferred,  is  perhaps  as  well  put  by  De 
Clercq  and  De  Vallat  as  by  any,  as  follows : 

"There  remains  a  last  consideration  to  notice,  that  of  a  con- 
sul who  is  charged  for  the  time  being  with  the  management  of 
the  affairs  of  the  diplomatic  post;  he  is  accredited  in  this  case 
in  his  diplomatic  capacity,  either  by  a  letter  of  the  minister 
of  foreign  affairs  of  France  to  the  minister  of  foreign  affairs 
of  the  country  where  he  is  about  to  reside,  or  by  a  letter  of  the 
diplomatic  agent  whose  place  he  is  about  to  fill,  or  finally  by  a 
personal  presentation  of  this  agent  to  the  minister  of  foreign 
affairs  of  the  country."  Guide  Pratique  des  Consulats,  Vol.  I., 
p.  93. 

That  it  may  sometimes  happen  that  consuls  are  so  charged  is 
recognized  by  section  1738  of  the  Revised  Statutes,  which  pro- 
vides : 

"No  consular  officer  shall  exercise  diplomatic  functions,  or 
hold  any  diplomatic  correspondence  or  relation  on  the  part  of 
the  United  States,  in,  with,  or  to  the  government,  or  country  to 
which  he  is  appointed,  or  any  other  country  or  government 
when  there  is  in  such  country  any  officer*  of  the  United  States 
authorized  to  perform  diplomatic  functions  therein ;  nor  in  any 
case,  unless  expressly  authorized  by  the  President  so  to  do." 

But  in  such  case  their  consular  character  is  necessarily  sub- 
ordinated to  their  superior  diplomatic  character.  "A  consul," 
observed  Mr.  Justice  Story,  in  The  Anne,  3  Wheat.  435,  445, 
"though  a  public  agent,  is  supposed  to  be  clothed  with  authority 
only  for  commercial  purposes.  He  has  an  undoubted  right  to 
interpose  claims  for  the  restitution  of  property  belonging  to 
the  subjects  of  his  own  country;  but  he  is  not  considered  as  a 
minister,  or  diplomatic  agent  of  his  sovereign,  intrusted  by 
virtue  of  his  office,  with  authority  to  represent  him  in  his  nego- 
tiations with  foreign  states,  or  to  vindicate  his  prerogatives. 
There  is  no  doubt  that  his  sovereign  may  specially  intrust  him 
with  such  authority ;  but  in  such  case  his  diplomatic  character 
is  superadded  to  his  ordinary  powers,  and  ought  to  be  recog- 
nized by  the  government  within  whose  dominions  he  assumes  to 
exercise  it." 

"When  a  consul  is  appointed  charge  d'affaires,  he  has  a  double 
political  capacity;  but  though  invested  with  full  diplomatic 
privileges,  he  becomes  so  invested  as  charge  d'affaires  and  not 
as  consul,  and  though  authorized  as  consul  to  communicate  di- 
rectly with  the  government  in  which  he  resides,  he  does  not 


IN  RE  BAIZ.  335 

thereby  obtain  the  diplomatic  privileges  of  a  minister.     Atty. 
Geri.  Gushing,  7  Opinions,  342,  345. 

This  is  illustrated  by  the  ruling  of  Mr.  Secretary  Blaine, 
April  12,  1881,  that  the  Consul  General  of  a  foreign  gov- 
ernment was  not  to  be  regarded  as  entitled  to  the  immunities 
accompanying  the  possession  of  diplomatic  character,  because 
he  was  also  accredited  as  the  "political  agent"  so-called  of  that 
government,  since  he  was  not  recognized  as  performing  any  acts 
as  such,  which  he  was  not  equally  competent  to  perform  as 
Consul  General.  1  Whart.  Dig.  Int.  Law,  2d  ed.,  c.  4,  §  88, 
p.  624. 

We  are  of  opinion  that  Mr.  Baiz  was  not,  at  the  time  of  the 
commencement  of  the  suit  in  question,  charge  d'affaires  ad  in- 
terim of  Guatemala,  or  invested  with  and  exercising  the  prin- 
cipal diplomatic  functions,  or  in  any  view  a  "diplomatic  offi- 
cer." He  was  not  a  public  minister  within  the  intent  and 
meaning  of  §  687 ;  and  the  District  Court  had  jurisdiction. 

The  letter  of  Serior  Lainfiesta  of  January  16,  1889,  was  neither 
an  appointment  of  Mr.  Baiz  as  charge  d'affaires  ad  interim,  nor 
equivalent  to  such  an  appointment.  It  was  a  request  in  terms 
that  the  Secretary  of  State  would  "please  allow  that  the  Consul 
General  of  Guatemala  and  Honduras,  in  New  York,  Mr.  Jacob 
Baiz,"  should  communicate  to  the  office  of  the  Secretary  of 
State  any  matters  relating  to  the  peace  of  Central  America  of 
which  that  department  ought  to  be  informed  without  delay. 
This  is  not  the  language  of  designation  to  a  representative 
position,  and  is  the  language  designating  a  mere  medium  of 
communication;  and  the  reply  of  Mr.  Secretary  Bayard  so 
treats  it,  in  declaring  that  the  department  would  be  pleased  to 
receive  any  communication  in  relation  to  Central  America  of 
which  Consul  General  Baiz  might  be  made  the  channel.  This 
reply  is  addressed  to  Mr.  Baiz  as  "Consul  General  of  Guatemala 
and  Honduras, ' '  and  not  as  charge  d  'affaires  ad  interim.  .  .  . 

The  official  circular  issued  by  the  Department  of  State,  cor- 
rected to  June  13,  1889,  gives  the  names  and  description  of 
the  charges  d'affaires  ad  interim,  in  the  case  of  countries  rep- 
resented by  ministers  who  were  absent  and  of  countries  having 
no  minister,  and  the  date  of  their  presentation.  In  the  instance 
of  Portugal,  the  name  is  given  of  "Consul  and  acting  Consul 
General,  in  charge  of  business  of  legation,"  and  the  fact  of  the 
presentation  with  the  date  appears  in  the  list;  while  in  the  in- 
stance of  Guatemala,  Salvador  and  Honduras,  the  name  of  Mr. 


336         THE  PACIFIC  RELATIONS  OF  STATES. 

Baiz  is  referred  to  in  a  footnote,  with  the  title  of  Consul  Gen- 
eral only;  nor  does  it  appear,  nor  is  it  claimed  to  be  the  fact, 
that  he  was  ever  presented.  As  stated  by  counsel,  Mr.  Webster 
took  the  ground,  in  the  case  of  M.  Hiilsemann,  that  as  charge 
d'affaires  he  was  not,  as  matter  of  strict  right,  entitled  to  be 
presented  to  the  President;  and  this  is  in  accordance  with  the 
regulations  of  the  State  Department.  Cons.  Reg.  13.  But  such 
presentation  is  undeniably  evidence  of  the  possession  of  diplo- 
matic character,  and  so  would  be  the  formal  reception  of  a 
charge  d'affaires  ad  interim  by  the  Secretary  of  State.  The  in- 
ference is  obvious,  that  if  the  Department  of  State  had  regarded 
Mr.  Baiz  as  charge  d'affaires  ad  interim,  or  as  "invested  with 
and  exercising  the  principal  diplomatic  functions,"  his  name 
would  have  been  placed  in  the  list,  with  some  indication  of  the 
fact,  as  the  title  of  charge,  or,  if  he  had  been  presented,  the 
date  of  his  presentation.  Nor  can  a  reason  be  suggested  why  the 
petitioner  has  not  produced  in  this  case  a  certificate  from  the 
Secretary  of  State  that  he  had  been  recognized  by  the  Depart- 
ment of  State  as  charge  d'affaires  ad  interim  of  Guatemala,  or 
as  intrusted  with  diplomatic  functions,  if  there  had  been  such 
recognition.  A  certificate  of  his  status  was  requested  by  the 
Guatemalan  minister,  and  if  the  State  Department  had  under- 
stood that  Mr.  Baiz  was  in  any  sense  or  in  any  way  a  "diplo- 
matic representative,"  no  reason  is  perceived  why  the  Depart- 
ment would  not  have  furnished  a  certificate  to  that  effect;  but 
instead  of  that,  it  contented  itself  with  a  courteous  reply,  giving 
what  was  in  its  judgment  a  sufficient  resume  of  the  facts,  the 
letter  being  in  effect  a  polite  declination  to  give  the  particular 
certificate  desired,  because  that  could  not  properly  be  done. 

Mr.  Baiz  was  a  citizen  of  the  United  States  and  a  resident  of 
the  city  of  New  York.  In  many  countries  it  is  a  state  maxim 
that  one  of  its  own  subjects  or  citizens  is  not  to  be  received  as  a 
foreign  diplomatic  agent,  and  a  refusal  to  receive,  based  on  that 
objection,  is  always  regarded  as  reasonable.  The  expediency  of 
avoiding  a  possible  conflict  between  his  privileges  as  such  and 
his  obligations  as  a  subject  or  citizen,  is  considered  reason  enough 
in  itself.  Wheaton,  8th  ed.,  §  210;  2  Twiss,  Law  of  Nations, 
276,  §  186;  2  Phill.  Int.  Law,  171.  Even  an  appointment  as 
consul  of  a  native  of  the  place  where  consular  service  is  re- 
quired, is,  according  to  Phillimore,  "perhaps,  rightfully  pro- 
nounced, by  a  considerable  authority,  to  be  objectionable  in  prin- 


IN  RE  BAIZ.  337 

ciple."  Vol.  II.,  p.  291,  citing  De  Martens  &  De  Cussey, 
Recueil  des  Traites,  Index  explicatif,  p.  xxx.,  tit.  "Consuls." 

"Other  powers,"  says  Calvo,  vol.  I.,  p.  559,  2d  ed.,  "admit 
without  difficulty  their  own  citizens  as  representatives  of  foreign 
states,  but  imposing  on  them  the  obligation  of  amenability  to 
the  local  laws  as  to  their  persons  and  property.  These  condi- 
tions, which,  nevertheless,  ought  never  to  go  so  far  as  to  modify 
or  alter  the  representative  character,  ought  always  to  be  defined 
before  or  at  the  time  of  receiving  the  agent;  for  otherwise,  the 
latter  might  find  it  impossible  to  claim  the  honors,  rights  and 
prerogatives  attached  to  his  employment."  See  also  Heffter,  3d 
Fr.  ed.,  387. 

In  the  United  States,  the  rule  is  expressed  by  Mr.  Secretary 
Evarts,  under  date  of  Sept.  19,  1879,  thus:  "This  Government 
objects  to  receiving  a  citizen  of  the  United  States  as  a  diplomatic 
representative  of  a  foreign  power.  Such  citizens,  however,  are 
frequently  recognized  as  consular  officers  of  other  nations,  and 
thisi  policy  is  not  known  to  have  hitherto  occasioned  any  incon- 
venience." And  again,  April  20,  18J30,  while  waiving  the  obsta- 
cle in  the  particular  instance,  he  says:  "The  usage  of  diplo- 
matic intercourse  between  nations  is  averse  to  the  acceptance, 
in  the  representative  capacity,  of  a  person  who,  while  native 
born  in  the  country  which  sends  him,  has  yet  acquired  lawful 
status  as  a  citizen  by  naturalization  of  the  country  to  which  he 
is  sent."  1  Wharton  Dig.  Int.  Law,  2d  ed.,  §  88a,  p.  628.  Of 
course  the  objection  would  not  exist  to  the  same  extent  in  the 
case  of  designation  for  special  purposes  or  temporarily,  but 
it  is  one  purely  for  the  receiving  government  to  insist  upon  or 
waive  at  its  pleasure.  The  presumption,  therefore,  would  ordi- 
narily be  against  Mr.  Baiz's  contention,  and,  as  matter  of  fact, 
we  find  that  when,  in  1886,  he  was  appointed  charge  d'affaires 
of  the  Republic  of  Honduras  to  the  Government  of  the  United 
States,  Mr.  Secretary  Bayard  declined  receiving  him  as  the 
diplomatic  representative  of  the  government  of  that  country, 
because  of  his  being  a  citizen  of  the  United  States,  and  advised 
him  that:  "It  has  long  been  the  almost  uniform  practice  of 
this  Government  to  decline  to  recognize  American  citizens  as 
the  accredited  diplomatic  representatives  of  foreign  powers.  The 
statutory  and  jurisdictional  immunities  and  the  customary  privi- 
leges of  right  attaching  to  the  office  of  a  foreign  minister  make 
it  not  only  inconsistent,  but  at  times  even  inconvenient,  that  a 
citizen  of  this  country  should  enjoy  so  anomalous  a  position." 


338          THE  PACIFIC  RELATIONS  OF  STATES. 

And  in  a  subsequent  communication  rendered  necessary  by  a 
direct  question  of  Mr.  Baiz,  the  Secretary  informs  him  "that 
it  is  not  the  purpose  of  the  department  to  regard  the  substitu- 
tionary  agency,  which  it  cheerfully  admits  in  your  case,  as 
conferring  upon  you  personally  any  diplomatic  status  what- 
ever." This  correspondence  disposes  of  the  question  before  us. 

Our  conclusion  is,  as  already  stated,  that  the  District  Court 
had  jurisdiction  and  we  accordingly  discharge  the  rule  and 

Deny  the  writs. 

NOTE. — The  employment  of  envoys  is  a  feature  of  the  earliest  inter- 
national relations,  and  the  recognition  of  their  inviolable  character 
was  one  of  the  first  rules  of  international  law  to  be  developed.  King 
David  made  war  upon  the  Ammonites  because  of  the  contempt  with 
which  his  messengers  were  treated,  and  among  the  Greeks  and 
Romans  the  same  conception  of  the  respect  due  to  an  envoy  prevailed. 
Hyde,  I,  746.  It  was  not  however  until  about  the  fifteenth  century 
that  permanent  missions  began  to  be  established.  Such  missions 
were  objects  of  suspicion  in  the  countries  of  their  sojourn,  and  not 
without  reason,  for  they  were  usually  centers  of  intrigue  and  con- 
spiracy which  often  threatened*  even  the  life  of  the  sovereign  under 
whose  protection  they  dwelt.  The  plots  formed  by  the  French  and 
Spanish  Ambassadors  for  the  murder  of  Queen  Elizabeth  of  England 
were  not  contrary  to  the  customs  of  that  time.  The  ambassadors 
who  represented  Germany  and  Austria-Hungary  in  the  United  States 
at  the  outbreak  of  the  Great  War  reverted  to  the  conception  of 
diplomacy  which  prevailed  in  the  Middle  Ages  and  made  their 
embassies  the  source  of  conspiracies  which  menaced  the  lives  and 
property  of  American  citizens.  How  radically  the  practice  of  diplo- 
macy has  changed  in  the  last  three  centuries  may  be  seen  from  the 
fact  that  it  is  now  customary  for  a  state  to  inquire  as  to  the  accepta- 
bility of  the  person  whose  appointment  as  a  chief  of  mission  it  is 
contemplating,  that  every  state  expects  its  representatives  to  act  in 
the  most  friendly  manner  toward  the  governments  to  which  they  are 
accredited,  and  that  any  diplomat  whose  conduct  is  offensive  to  such 
government  subjects  himself  to  recall  or  even  to  dismissal. 

It  sometimes  happens  that  a  state  will  receive  for  special  purposes 
the  agent  of  a  government  which  it  does  not  recognize.  Thus  Great 
Britain  has  entered  into  a  trade  agreement  with  the  Soviet  Govern- 
ment of  Russia,  but  this  is  not  such  a  recognition  of  that  government 
as  to  entitle  its  agent  in  England  to  diplomatic  immunity,  Fenton 
Textile  Association  v.  Krassin  (1922),  38  T.  L.  R.  259. 

As  to  diplomatic  intercourse  in  general  see  Sir  Ernest  Satow,  A 
Guide  to  Diplomatic  Practice;  Foster,  The  Practice  of  Diplomacy; 
Callieres,  The  Practice  of  Diplomacy;  Heatley,  Diplomacy  and  the 
Study  of  International  Relations;  Hill,  History  of  Diplomacy  in  the 
International  Development  of  Europe;  Moore,  Principles  of  American 
Diplomacy;  Bonfils  (Fauchille),  sec.  652.  As  to  the  grades  of 


HAVER  v.  YAKER. 

diplomatic  agents,  see  Hyde,  I,  708;  Cobbett,  Coses  and  Opinions,  I, 
312;  Moore,  Digest,  IV,  427.  As  to  the  beginning  and  termination  of 
missions,  see  Hyde,  I,  725;  Moore,  Digest,  IV,  450.  As  to  the  forms 
of  diplomatic  intercourse,  see  Hyde,  I,  776;  Moore,  Digest,  IV,  680. 
As  to  the  dismissal  of  ministers  by  the  government  to  which  they  are 
accredited,  see  Hyde,  I,  733;  Moore,  Digest,  IV,  508.  As  to  the  func- 
tions of  diplomatic  agents,  see  Cobbett,  Cases  and  Opinions,  I,  315; 
Hyde,  I,  739;  Moore,  Digest,  IV,  680. 

As  to  consuls  see  Stowell,  Le  Consul  and  Consular  Cases  and 
Opinions;  Cobbett,  Cases  and  Opinions,  I,  321;  Hyde,  I,  785;  Bonfils 
(Fauchille),  sec.  733;  Moore,  Digest,  V,  chap.  xvi.  As  to  a  consul's 
rights  in  connection  with  the  estates  of  deceased  countrymen,  see 
Hyde,  I,  809.  As  to  a  consul's  duties  in  connection  with  shipping 
and  seamen,  see  Hyde,  I,  820. 


SECTION  2.    TREATIES  AND  CONVENTIONS. 
HAVER  v.  TAKER. 

SUPREME  COURT  OF  THE  UNITED  STATES.    1869. 
9  Wallace,  32. 

Error  to  the  Court  of  Appeals  of  Kentucky. 

[Yaker,  a  Swiss  by  birth  but  a  naturalized  American,  died 
intestate  in  Kentucky  in  1853  seized  of  certain  real  estate  there. 
He  left  a  widow,  who  was  a  citizen  of  Kentucky,  and  certain 
heirs  and  next  of  kin  who  were  citizens  of  Switzerland.  By  the 
laws  of  Kentucky  as  they  stood  in  1853,  Yaker 's  heirs  in  Swit- 
zerland could  not  inherit  the  realty,  the  whole  of  which  would 
go  to  the  widow.  In  1850,  a  treaty  was  signed  by  the  United 
States  and  Switzerland  by  the  terms  of  which  the  heirs  claimed 
the  realty.  But  the  treaty  had  not  been  ratified  and  proclaimed 
until  1855,  and  the  Court  of  Appeals  of  Kentucky  held  that  it 
took  effect  only  when  ratified.] 

Mr.  Justice  DAVIS  delivered  the  opinion  of  the  court. 

It  is  undoubtedly  true,  as  a  principle  of  international  law, 
that,  as  respects  the  rights  of  either  government  under  it,  a 
treaty  is  considered  as  concluded  and  binding  from  the  date  of 
its  signature.  In  this  regard  the  exchange  of  ratifications  has 
a  retroactive  effect,  confirming  the  treaty  from  its  date 
(Wheaton's  International  Law,  by  Dana,  336,  bottom  paging). 


340         THE  PACIFIC  RELATIONS  OF  STATES. 

But  a  different  rule  prevails  where  the  treaty  operates  on  in- 
dividual rights.  The  principle  of  relation  does  not  apply  to 
rights  of  this  character,  which  were  vested  before  the  treaty  was 
ratified.  In  so  far  as  it  affects  them,  it  is  not  considered  as 
concluded  until  there  is  an  exchange  of  ratifications,  and  this  we 
understand  to  have  been  decided  by  this  court,  in  Arredondo's 
Case,  reported  in  6th  Peters,  p.  749.  The  reason  of  the  rule  is 
apparent.  In  this  country,  a  treaty  is  something  more  than  a 
contract,  for  the  Federal  Constitution  declares  it  to  be  the  law 
of  the  land.  If  so,  before  it  can  become  a  law,  the  Senate,  in 
whom  rests  the  authority  to  ratify  it,  must  agree  to  it.  But 
the  Senate  are  not  required  to  adopt  or  reject  it  as  a  whole,  but 
may  modify  or  amend  it,  as  was  done  with  the  treaty  under 
consideration.  As  the  individual  citizen,  on  whose  rights  of 
property  it  operates,  has  no  means  of  knowing  anything  of  it 
while  before  the  Senate,  it  would  be  wrong  in  principle  to  hold 
him  bound  by  it,  as  the  law  of  the  land,  until  it  was  ratified  and 
proclaimed.  And  to  construe  the  law,  so  as  to  make  the  ratifica- 
tion of  the  treaty  relate  back  to  its  signing,  thereby  divesting  a 
title  already  vested,  would  be  manifestly  unjust,  and  cannot  be 
sanctioned. 

These  views  dispose  of  this  case,  and  we  are  not  required  to 
determine  whether  this  treaty,  if  it  had  become  a  law  at  an 
earlier  date,  would  have  secured  the  plaintiffs  in  error  the 
interest  which  they  claim  in  the  real  estate  left  by  Yaker  at  his 
death.  Judgment  affirmed. 


CHAELTON  v.  KELLY,  SHERIFF  OF  HUDSON  COUNTY, 
NEW  JERSEY. 

SUPREME  COURT  OF  THE  UNITED  STATES.    1913. 
229  U.  S.  447. 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the 
District  of  New  Jersey. 

[Charlton,  an  American  citizen,  was  arrested  in  New  Jersey 
upon  complaint  of  the  Italian  Vice-Consul,  who  charged  him 
with  the  commission  of  a  murder  in  Italy,  and  demanded  his 
surrender  in  accordance  with  the  terms  of  the  extradition  treaty 


CHARLTON  v.  KELLY.  341 

with,  the  United  States.  The  Penal  Code  of  Italy  forbade  the 
surrender  of  Italian  subjects  for  trial  in  another  country  for  an 
offense  committed  in  that  country,  but  provided  for  their  trial 
in  Italy.  Charlton  contended  that  the  obligations  of  an  extra- 
dition treaty  are  reciprocal  and  hence  that  Italy's  refusal  to 
surrender  her  citizens  for  trial  in  the  country  in  which  their 
offenses  were  committed  abrogated  that  clause  in  the  treaty  by 
which  the  United  States  agreed  to  surrender  its  citizens  for  trial 
for  offenses  committed  in  Italy.] 

MR.  JUSTICE  LURTON  .  .  .  delivered  the  opinion  of  the 
court.  .  .  . 

We  come  now  to  the  contention  that  by  the  refusal  of  Italy 
to  deliver  up  fugitives  of  Italian  nationality,  the  treaty  has 
thereby  ceased  to  be  of  obligation  on  the  United  States.  The 
attitude  of  Italy  is  indicated  by  its  Penal  Code  of  1900  which 
forbids  the  extradition  of  citizens,  and  by  the  denial  in  two  or 
more  instances  to  recognize  this  obligation  of  the  treaty  as  ex- 
tending to  its  citizens.  .  .  . 

The  attitude  of  the  Italian  Government  indicated  by  proffer- 
'ing  this  request  for  extradition  "in  accordance  with  Article  V 
of  the  Treaty  of  1868  "  is  .  .  .  substantially  this, — 

First.  That  crimes  committed  by  an  American  in  a  foreign 
country  were  not  justiciable  in  the  United  States,  and  must, 
therefore,  go  unpunished  unless  the  accused  be  delivered  to  the 
country  wherein  the  crime  was  committed  for  trial. 

Second:  Such  was  not  the  case  with  Italy,  since  under  the 
laws  of  Italy,  crimes  committed  by  its  subjects  in  foreign  lands 
were  justiciable  in  Italy. 

Third :  That  as  a  consequence  of  the  difference  in  the  munic- 
ipal law,  "it  was  logical  that  so  far  as  parity  in  the  matter  of 
extraditing  their  respective  citizens  or  subjects  is  concerned,  each 
party  should,  in  the  absence  of  specific  provisions  in  the  Conven- 
tion itself,  be  guided  by  the  spirit  of  its  own  legislation. ' ' 

This  adherence  to  a  view  of  the  obligation  of  the  treaty  as 
not  requiring  one  country  to  surrender  its  nationals  while  it  did 
the  other,  presented  a  situation  in  which  the  United  States 
might  do  either  of  two  things,  namely:  abandon  its  own  inter- 
pretation of  the  word  persons  as  including  citizens,  or  adhere 
to  its  own  interpretation  and  surrender  the  appellant,  although 
the  obligation  had,  as  to  nationals,  ceased  .to  be  reciprocal.  The 
United  States  could  not  yield  its  own  interpretation  of  the 


342         THE  PACIFIC  RELATIONS  OP  STATES. 

treaty,  since  that  would  have  had  the  most  serious  consequence 
on  five  other  treaties  in  which  the  word  "persons"  had  been 
used  in  its  ordinary  meaning,  as  including  all  persons,  and, 
therefore,  not  exempting  citizens.  If  the  attitude  of  Italy  was, 
as  contended,  a  violation  of  the  obligation  of  the  treaty,  which, 
in  international  law,  would  have  justified  the  United  States  in 
denouncing  the  treaty  as  no  longer  obligatory,  it  did  not  auto- 
matically have  that  effect.  If  the  United  States  elected  not  to 
declare  its  abrogation,  or  come  to  a  rupture,  the  treaty  would 
remain  in  force.  It  was  only  voidable,  not  void;  and  if  the 
United  States  should  prefer,  it  might  waive  any  breach  which 
in  its  judgment  had  occurred  and  conform  to  its  own  obligation 
as  if  there  had  been  no  such  breach.  7  Kent's  Comm.,  p.  175. 

Upon  this  subject  Vattel,  page  452,  says : 

' '  When  the  treaty  of  peace  is  violated  by  one  of  the  contract- 
ing parties,  the  other  has  the  option  of  either  declaring  the 
treaty  null  and  void,  or  allowing  it  still  to  subsist;  for  a  con- 
tract which  contains  reciprocal  engagements,  cannot  be  binding 
on  him  with  respect  to  the  party  who  on  his  side  pays  no  regard 
to  the  same  contract.  But,  if  he  chooses  not  to  come  to  a  rup- 
ture, the  treaty  remains  valid  and  obligatory." 

Grotius  says  (book  3,  ch.  20,  par.  38)  : 

"It  is  honourable,  and  laudable  to  maintain  a  peace  even 
after  it  has  been  violated  by  the  other  parties :  as  Scipio  did, 
after  the  many  treacherous  acts  of  the  Carthaginians.  For  no 
one  can  release  himself  from  an  obligation  by  acting  contrary 
to  his  engagements.  And  though  it  may  be  further  said  that 
the  peace  is  broken  by  such  an  act,  yet  the  breach  ought  to  be 
taken  in  favour  of  the  innocent  party,  if  he  thinks  proper  to 
avail  himself  of  it. ' ' 

In  Moore's  International  Law  Digest.  Vol.  5,  page  566,  it  is 
said: 

"A  treaty  is  primarily  a  compact  between  independent  na- 
tions, and  depends  for  the  enforcement  of  its  provisions  on  the 
honor  and  the  interests  of  the  governments  which  are  parties  to 
it.  If  these  fail,  its  infraction  becomes  the  subject  of  interna- 
tional reclamation  and  negotiation,  which  may  lead  to  war  to  en- 
force them.  With  this  judicial  tribunals  have  nothing  to  do." 

In  the  case  of  In  re  Thomas,  12  Blatchf.  370,  Mr.  Justice 
Blatchford  (then  District  Judge)  said: 

"Indeed,  it  is  difficult  to  see  how  such  a  treaty  as  that  be- 
tween Bavaria  and  the  United  States  can  be  abrogated  by  the 


CHARLTON  v.  KELLY.  343 

action  of  Bavaria  alone,  without  the  consent  of  the  United 
States.  Where  a  treaty  is  violated  by  one  of  the  contracting 
parties,  it  rests  alone  with  the  injured  party  to  pronounce  it 
broken,  the  treaty  being,  in  such  case,  not  absolutely  void,  but 
voidable,  at  the  election  of  the  injured  party,  who  may  waive  or 
remit  the  infraction  committed,  or  may  demand  a  just  satisfac- 
tion, the  treaty  remaining  obligatory  if  he  chooses  not  to  come 
to  a  rupture. ' ' 

In  the  case  of  Terlinden  v.  Ames,  184  U.  S.  270,  287,  the 
question  was  presented  whether  a  treaty  was  a  legal  obligation 
if  the  state  with  whom  it  was  made  was  without  power  to  carry 
out  its  obligation.  This  court  quoted  with  approval  the  lan- 
guage of  Justice  Blatchford,  set  out  above,  and  said  (p.  285)  : 

"And  without  considering  whether  extinguished  treaties  can 
be  renewed  by  tacit  consent  under  our  Constitution,  we  think 
that  on  the  question  whether  this  treaty  has  ever  been  termi- 
nated, governmental  action  in  respect  to  it  must  be  regarded  as 
of  controlling  importance." 

That  the  political  branch  of  the  Government  recognizes  the 
treaty  obligation  as  still  existing  is  evidenced  by  its  action  in 
this  case.  In  the  memorandum  giving  the  reasons  of  the  De- 
partment of  State  for  determining  to  surrender  the  appellant, 
after  stating  the  difference  between  the  two  governments  as  to 
the  interpretation  of  this  clause  of  the  treaty,  Mr.  Secretary 
Knox  said : 

"The  question  is  now  for  the  first  time  presented  as  to 
whether  or  not  the  United  States  is  under  obligation  under 
treaty  to  surrender  to  Italy  for  trial  and  punishment  citizens  of 
the  United  States  fugitive  from  the  justice  of  Italy,  notwithstand- 
ing the  interpretation  placed  upon  the  treaty  by  Italy  with 
reference  to  Italian  subjects.  In  this  connection  it  should  be 
observed  that  the  United  States,  although,  as  stated  above,  con- 
sistently contending  that  the  Italian  interpretation  was  not  the 
proper  one,  has  not  treated  the  Italian  practice  as  a  breach  of 
the  treaty  obligation  necessarily  requiring  abrogation,  has  not 
abrogated  the  treaty  or  taken  any  step  looking  thereto,  and  has, 
on  the  contrary,  constantly  regarded  the  treaty  as  in  full  force 
and  effect  and  has  answered  the  obligations  imposed  thereby 
and  has  invoked  the  rights  therein  granted.  It  should,  more- 
over, be  observed  that  even  though  the  action  of  the  Italian 
Government  be  regarded  as  a  breach  of  the  treaty,  the  treaty  is 


344         THE  PACIFIC  RELATIONS  OF  STATES. 

binding  until  abrogated,  and  therefore  the  treaty  not  having 
been  abrogated,  its  provisions  are  operative  against  us. 

"The  question  would,  therefore,  appear  to  reduce  itself  to 
one  of  interpretation  of  the  meaning  of  the  treaty,  the  Govern- 
ment of  the  United  States  being  now  for  the  first  time  called 
upon  to  declare  whether  it  regards  the  treaty  as  obliging  it  to 
surrender  its  citizens  to  Italy,  notwithstanding  Italy  has  not 
and  insists  it  can  not  surrender  its  citizens  to  us.  It  should  be 
observed,  in  the  first  place,  that  we  have  always  insisted  not 
only  with  reference  to  the  Italian  extradition  treaty,  but  with 
reference  to  the  other  extradition  treaties  similarly  phrased  that 
the  word  'persons'  includes  citizens.  We  are,  therefore,  com- 
mitted to  that  interpretation.  The  fact  that  we  have  for  rea- 
sons already  given  ceased  generally  to  make  requisition  upon 
the  Government  of  Italy  for  the  surrender  of  Italian  subjects 
under  the  treaty,  would  not  require  of  necessity  that  we  should, 
as  a  matter  of  logic  or  law,  regard  ourselves  as  free  from  the 
obligation  of  surrendering  our  citizens,  we  laboring  under  no 
such  legal  inhibition  regarding  surrender  as  operates  against 
the  government  of  Italy.  Therefore,  since  extradition  treaties 
need  not  be  reciprocal,  even  in  the  matter  of  the  surrendering 
of  citizens,  it  would  seem  entirely  sound  to  consider  ourselves 
as  bound  to  surrender  our  citizens  to  Italy  even  though  Italy 
should  not,  by  reason  of  the  provisions  of  her  municipal  law  be 
able  to  surrender  its  citizens  to  us." 

The  executive  department  having  thus  elected  to  waive  any 
right  to  free  itself  from  the  obligation  to  deliver  up  its  own 
citizens,  it  is  the  plain  duty  of  this  court  to  recognize  the  obliga- 
tion to  surrender  the  appellant  as  one  imposed  by  the  treaty  as 
the  supreme  law  of  the  land  and  as  affording  authority  for  the 
warrant  of  extradition.  Judgment  affirmed. 

NOTE. — The  effect  which  will  be  given  to  a  treaty  by  its  signatories 
is  a  question  of  constitutional  rather  than  of  international  law.  In 
Its  nature  a  treaty  is  a  contract  between  nations  and  not  a  measure 
of  legislation.  It  is  a  promise  rather  than  a  completed  act  and  merely 
indicates  what  the  parties  to  it  have  bound  themselves  to  do.  In 
Great  Britain,  for  instance,  a  treaty  is  recognized  as  an  engagement 
binding  in  honor  upon  the  government,  but  the  courts  cannot  enforce 
it  nor  protect  any  rights  derived  from  it  until  authorized  to  do  so 
by  an  act  of  Parliament,  Walker  v.  Baird  (1892),  L.  R.  [1892]  A.  C.  691; 
The  Barenfels  (1915),  1  Br.  &  Col.  P.  C.  122,  128.  If  a  treaty  conflicts 
with  an  act  of  Parliament  the  statute  always  prevails,  In  re  Cali- 
fornia Fig  Syrup  Co.'s  Trade-mark  (1885),  40  Ch.  D.  620,  627-8.  In 
America  treaties  occupy  a  wholly  exceptional  position.  They  are 


NOTE.  345 

declared  by  the  Constitution  to  be  a  part  of  the  supreme  law  of 
the  land,  and  unless  by  their  terms  they  contemplate  further  legis- 
lative or  executive  action,  they  may  create  rights  which  a  court  of 
competent  jurisdiction  is  under  obligation  to  enforce,  Foster  and 
Elam  v.  Neilson  (1829),  2  Peters,  253.  Whether  or  not  the  agent 
of  the  foreign  government  who  made  the  treaty  on  its  behalf  was 
duly  authorized  is  a  political  question  of  which  the  courts  will  not 
take  jurisdiction,  Doe  v.  Braden  (1854),  16  Howard,  635.  In  case 
of  conflict  between  a  treaty  and  an  act  of  Congress,  the  one  later  in 
time  prevails,  Head  Money  Cases  (1884),  112  U.  S.  580.  Should  Con- 
gress enact  a  law  which  operated  as  a  repeal  of  an  existing  treaty 
its  action  would  be  binding  upon  the  courts,  but  the  responsibility 
of  the  United  States  to  the  other  party  to  the  treaty  would  not  be 
affected  thereby,  Rainey  v.  United  States  (1914),  232  U.  S.  310.  In 
case  of  conflict  between  a  treaty  and  the  constitution  or  statute  of 
a  State,  the  treaty  prevails,  Ware  v.  Hylton  (1796),  3  Dallas,  199; 
Chirac  v.  Chirac  (1817),  2  Wheaton,  259;  Hauenstein  v.  Lynham 
(1879),  100  U.  S.  483;  People  v.  Gerke  (1855),  5  Cal.  381;  Techt  v. 
Hughes  (1920),  229  N.  Y.  222.  That  the  United  States  may  regulate 
by  treaty  subjects  which  it  may  not  regulate  by  legislation  see  Mis- 
souri v.  Holland  (1920),  252  U.  S.  416. 

For  executive  agreements  or  compacts  other  than  treaties  see 
Field  v.  Clark  (1892),  143  U.  S.  649;  Altman  v.  United  States  (1912), 
224  U.  S.  583.  The  important  agreement  between  Great  Britain  and 
the  United  States  for  the  limitation  of  naval  forces  on  the  Great 
Lakes  was  arrived  at  by  an  exchange  of  notes  and  was  never  em- 
bodied in  any  formal  instrument,  Moore,  Digest,  V.  204.  Horse  Shoe 
Reef  in  Lake  Erie  was  ceded  to  the  United  States  by  Great  Britain 
by  a  protocol  signed  in  London  by  Lord  Palmerston  and  the  American 
Minister  and  never  submitted\  to  the  Senate,  Moore,  Digest,  V.  215. 
A  temporary  situation  is  frequently  regulated  by  a  modus  vivendi 
which  is  purely  an  executive  agreement.  While  the  President  is 
morally  if  not  legally  bound  by  an  agreement  to  which  he  is  a  party, 
question  has  been  raised  as  to  the  binding  effect  of  his  personal  en- 
gagements upon  his  successors.  See  Baldwin,  "The  Exchange  of 
Notes  in  1908  between  Japan  and  the  United  States,"  Zeitschrift  fur 
Volkerrecht  und  Bundesstaatsrecht,  III,  456.  The  subject  is  well 
treated  in  Hyde,  II,  27. 

Many  countries,  like  the  United  States,  require  treaties  to  receive 
some  form  of  ratification.  In  the  absence  of  any  provision  to  the 
contrary  in  the  treaty  itself,  a  treaty  takes  effect  as  to  private  rights 
upon  the  exchange  of  ratifications,  United  States  v.  Arredondo  (1832), 
G  Peters,  691,  but  as  to  public  rights  it  may  operate  retrospectively  as 
from  the  date  of  signature,  Davis  v.  Police  Jury  of  Concordia  (1850), 
9  Howard,  280.  Treaties  made  by  members  of  the  League  of  Nations 
do  not  become  binding  until  registered  with  the  Secretariat  of  the 
League. 

On  the  construction  of  treaties  see  Marryatt  v.  Wilson  (1799), 
1  Bosan.  &  Puller,  430;  The  Amistad  (1841),  15  Peters,  518;  Geofroy 
v.  Riggs  (1890),  133  U.  S.  258;  Sullivan  v.  Kidd  (1921),  245  U.  S. 


346         THE  PACIFIC  RELATIONS  OF  STATES. 

433.  On  the  construction  of  the  most-favored-nation  clause,  which  is 
so  commonly  found  in  treaties  of  commerce,  see  Crandall,  ch.  xxiv; 
Herod,  Favored  Nation  Treatment;  Hyde,  II,  73;  United  States  Tariff 
Commission,  Reciprocity  and  Commercial  Treaties;  Visser,  "La  Clause 
de  la  Nation  la  plus  Favorisfie,"  Revue  de  Droit  International,  IV 
(2nd  series),  66,  159,  270;  Sir  Thomas  Barclay,  "The  Effect  of  the 
Most-Favoured — Nation  Clause  in  Treaties",  Yale  Law  Journal,  XVII, 
26;  Hornbeck,  "The  Most-Favored-Nation  Clause",  Am.  Jour.  Int.  Law, 
III,  395,  619,  797;  Bartram  v.  Robertson  (1887),  122  U.  S.  116;  Whit- 
ney v.  Robertson  (1888),  124  U.  S.  190;  Taylor  v.  Morton  (1855),  2 
Curtis,  454. 

On  the  general  subject  of  treaties  see  Butler,  The  Treaty-Making 
Power  of  the  United  States;  Crandall,  Treaties:  Their  Making  and 
Enforcement;  Roxburgh,  International  Conventions  and  Third  States; 
Cobbett,  Cases  and  Opinions,  I,  327;  Hyde,  II,  1;  Bonfils  (Fauchille), 
sec.  816;  and  Moore,  Digest,  V.  ch.  xvii. 

SECTION  3.    EXTRADITION. 
UNITED  STATES  v.  RAUSCHER. 

SUPREME  COUBT  OF  THE  UNITED   STATES.    1886. 
119  U.  S.  407. 

Certificate  of  division  of  opinion  from  the  Circuit  Court  of 
the  United  States  for  the  Southern  District  of  New  York. 

[Rauscher,  being  charged  with  murder  on  board  an  American 
vessel  on  the  high  seas,  fled  to  England,  whence  he  was  extra- 
dited in  accordance  with  the  treaty  of  1842.  The  Circuit  Court 
in  which  he  was  tried  did  not  proceed  against  him  for  murder, 
but  for  a  lesser  offence  not  named  in  the  treaty.  The  judges 
being  divided  in  opinion  as  to  whether  this  could  be  done,  the 
question  was  certified  to  the  Supreme  Court.] 

MR.  JUSTICE  MILLER  delivered  the  opinion  of  the  court.    .    .    . 

The  treaty  with  Great  Britain,  under  which  the  defendant 
was  surrendered  by  that  government  to  ours  upon  a  charge  of 
murder,  is  that  of  August  9,  1842,  styled  "A  treaty  to  settle 
and  define  the  boundaries  between  the  territories  of  the  United 
States  and  the  possessions  of  Her  Britannic  Majesty  in  North 
America;  for  the  final  suppression  of  the  African  slave  trade; 
and  for  the  giving  up  of  criminals,  fugitives  from  justice,  in  cer- 
tain cases."  8  Stat.  576. 

With  the  exception  of  this  caption,  the  tenth  article  of  the 


I 
UNITED  STATES  v.  RAUSCHER.  347 

treaty  contains  all  that  relates  to  the  subject  of  extradition  of 
criminals.  That  article  is  here  copied,  as  follows : 

''It  is  agreed  that  the  United  States  and  Her  Brittanic  Maj- 
esty shall,  upon  mutual  requisitions  by  them,  or  their  ministers, 
officers,  or  authorities,  respectively  made,  deliver  up  to  justice 
all  persons  who,  being  charged  with  the  crime  of  murder,  or 
assault  with  intent  to  commit  murder,  or  piracy,  or  arson,  or 
robbery,  or  forgery,  or  the  utterance  of  forged  paper,  com- 
mitted within  the  jurisdiction  of  either,  shall  seek  an  asylum,  or 
shall  be  found,  within  the  territories  of  the  other :  provided  that 
this  shall  only  be  done  upon  such  evidence  of  criminality  as, 
according  to  the  laws  of  the  place  where  the  fugitive  or  person 
so  charged  shall  be  found,  would  justify  his  apprehension  and 
commitment  for  trial,  if  the  crime  or  offence  had  there  been  com- 
mitted; and  the  respective  judges  and  other  magistrates  of  the 
two  Governments  shall  have  power,  jurisdiction,  and  authority, 
upon  complaint  made  under  oath,  to  issue  a  warrant  for  the 
apprehension  of  the  fugitive  or  person  so  charged,  that  he  may 
be  brought  before  such  judges  or  other  magistrates,  respectively, 
to  the  end  that  the  evidence  of  criminality  may  be  heard  and 
considered;  and  if,  on  such  hearing,  the  evidence  be  deemed 
sufficient  to  sustain  the  charge,  it  shall  be  the  duty  of  the  ex- 
amining judge  or  magistrate  to  certify  the  same  to  the  proper 
Executive  authority,  that  a  warrant  may  issue  for  the  surrender 
of  such  fugitive."  .  .  . 

It  is  only  in  modern  times  that  the  nations  of  the  earth  have 
imposed  upon  themselves  the  obligation  of  delivering  up  these 
fugitives  from  justice  to  the  States  where  their  crimes  were  com- 
mitted, for  trial  and  punishment.  This  has  been  done  generally 
by  treaties  made  by  one  independent  government  with  another. 
Prior  to  these  treaties,  and  apart  from  them,  it  may  be  stated 
as  the  general  result  of  the  writers  upon  international  law,  that 
there  was  no  well-defined  obligation  on  one  country  to  deliver 
up  such  fugitives  to  another,  and  though  such  delivery  was 
often  made,  it  was  upon  the  principle  of  comity,  and  within  the 
discretion  of  the  government  whose  action  was  invoked;  and  it 
has  never  been  recognized  as  among  those  obligations  of  one 
government  towards  another  which  rest  upon  established  prin- 
ciples of  international  law.  .  .  . 

With  nearly  all  the  nations  of  the  world  with  whom  our  rela- 
tions are  such  that  fugitives  from  justice  may  be  found  within 
their  dominions  or  within  ours,  we  have  treaties  which  govern  the 


348          THE  PACIFIC  RELATIONS  OF  STATES. 

rights  and  conduct  of  the  parties  in  such  cases.  These  treaties 
are  also  supplemented  by  acts  of  Congress,  and  both  are  in  their 
nature  exclusive. 

The  case  we  have  under  consideration  arises  under  one  of 
these  treaties  made  between  the  United  States  and  Great 
Britain,  the  country  with  which,  on  account  of  our  intimate 
relations,  the  cases  requiring  extradition  are  likely  to  be  most 
numerous.  .  .  . 

The  treaty  itself,  in  reference  to  the  very  matter  suggested 
in  the  question  certified  by  the  judges  of  the  Circuit  Court,  has 
been  made  the  subject  of  diplomatic  negotiation  between  the 
Executive  Department  of  this  country  and  the  government  of 
Great  Britain  in  the  cases  of  Winslow  and  Lawrence.  "Winslow, 
who  was  charged  with  forgery  in  the  United  States,  had  taken 
refuge  in  England,  and,  on  demand  being  made  for  his  extra- 
dition, the  Foreign  Office  of  that  country  required  a  preliminary 
pledge  from  our  government  that  it  would  not  try  him  for  any 
other  offense  than  the  forgery  for  which  he  was  demanded.  To 
this  Mr.  Fish,  the  Secretary  of  State,  did  not  accede,  and  was 
informed  that  the  reason  of  the  demand  on  the  part  of  the  Brit- 
ish government  was  that  one  Lawrence,  not  long  previously  ex- 
tradited under  the  same  treaty,  had  been  prosecuted  in  the 
courts  of  this  country  for  a  different  offence  from  that  for  which 
he  had  been  demanded  from  Great  Britain,  and  for  the  trial  of 
which  he  was  delivered  up  by  that  government.  Mr.  Fish  de- 
fended the  right  of  the  government  or  state  in  which  the  offence 
was  committed  to  try  a  person  extradited  under  this  treaty  for 
any  other  criminal  offence,  as  well  as  for  the  one  for  which  the 
extradition  had  been  demanded;  while  Lord  Derby,  at  the  head 
of  the  Foreign  Office  in  England,  construed  the  treaty  as  re- 
quiring the  government  which  had  demanded  the  extradition 
of  an  offender  against  its  laws  for  a  prescribed  offence,  men- 
tioned in  the  treaty  and  in  the  demand  for  his  extradition,  to 
try  him  for  that  offence  and  for  no  other.  The  correspondence 
is  an  able  one  upon  both  sides,  and  presents  the  question  which 
we  are  now  required  to  decide,  as  to  the  construction  of  the 
treaty  and  the  effect  of  the  acts  of  Congress  already  cited,  and  " 
of  a  statute  of  Great  Britain  of  1870  on  the  same  subject.  The 
negotiations  between  the  two  governments,  however,  on  that 
subject  were  inconclusive  in  any  other  sense  than  that  Winslow 
was  not  delivered  up  and  Lawrence  was  never  actually  brought 


UNITED  STATES  v.  RAUSCHER.  349 

to  judgment  for  any  other  offence  than  that  for  which  his  ex- 
tradition was  demanded.  .  .  . 

Turning  to  seek  in  judicial  decisions  for  authority  upon  the 
subject,  as  might  be  anticipated  we  meet  with  nothing  in  the 
English  courts  of  much  value,  for  the  reason  that  treaties  made 
by  the  Crown  of  Great  Britain  with  other  nations  are  not  in 
those  courts  considered  as  part  of  the  law  of  the  land,  but  the 
rights  and  the  duties  growing  out  of  those  treaties  are  looked 
upon  in  that  country  as  matters  confided  wholly  for  their  execu- 
tion and  enforcement  to  the  executive  branch  of  the  government. 
Speaking  of  the  Ashburton  treaty  of  1842,  which  we  are  now 
construing,  Mr.  Clarke  says,  that,  "in  England  the  common  law 
being  held  not  to  permit  the  surrender  of  a  criminal,  this  provi- 
sion could  not  come,  into  effect  without  an  Act  of  Parliament, 
but  in  the  United  States  a  treaty  is  as  binding  as  an  Act  of  Con- 
gress."  Clarke  on  Extradition,  38.  .  .  . 

The  treaty  of  1842  being,  therefore,  the  supreme  law  of  the 
land,  which  the  courts  are  bound  to  take  judicial  notice  of,  and 
to  enforce  in  any  appropriate  proceeding  the  rights  of  persons 
growing  out  of  that  treaty,  we  proceed  to  inquire,  in  the  first 
place,  so  far  as  pertinent  to  the  questions  certified  by  the  circuit 
judges,  into  the  true  construction  of  the  treaty.  We  have  al- 
ready seen  that,  according  to  the  doctrine  of  publicists  and 
writers  on  international  law,  the  country  receiving  the  offender 
against  its  laws  from  another  country  had  no  right  to  proceed 
against  him  for  any  other  offence  than  that  for  which  he  had 
been  delivered  up.  This  is  a  principle  which  commends  itself 
as  an  appropriate  adjunct  to  the  discretionary  exercise  of  the 
power  of  rendition,  because  it  can  hardly  be  supposed  that  a 
government  which  was  under  no  treaty  obligation  nor  any  ab- 
solute obligation  of  public  duty  to  seize  a  person  who  had  found 
an  asylum  within  its  bosom  and  turn  him  over  to  another  coun- 
try for  trial,  would  be  willing  to  do  this,  unless  a  case  was  made 
of  some  specific  offence  of  a  character  which  justified  the  gov- 
ernment in  depriving  the  party  of  his  asylum.  It  is  unreason- 
able that  the  country  of  the  asylum  should  be  expected  to  deliver 
up  such  person  to  be  dealt  with  by  the  demanding  government 
without  any  limitation,  implied  or  otherwise,  upon  its  prosecu- 
tion of  the  party.  In  exercising  its  discretion,  it  might  be  very 
willing  to  deliver  up  offenders  against  such  laws  as  were  essen- 
tial to  the  protection  of  life,  liberty,  and  person,  while  it  would 
not  be  willing  to  do  this  on  account  of  minor  misdemeanors  or 


350         THE  PACIFIC  RELATIONS  OF  STATES. 

of  a  certain  class  of  political  offences  in  which  it  would  have  no 
interest  or  sympathy.  Accordingly,  it  has  been  the  policy  of 
all  governments  to  grant  an  asylum  to  persons  who  have  fled 
from  their  homes  on  account  of  political  disturbances,  and  who 
might  be  there  amenable  to  laws  framed  with  regard  to  such 
subjects,  and  to  the  personal  allegiance  of  the  party.  In  many 
of  the  treaties  of  extradition  between  the  civilized  nations  of 
the  world,  there  is  an  express  exclusion  of  the  right  to  demand 
the  extradition  of  offenders  against  such  laws,  and  in  none  of 
them  is  this  class  of  offences  mentioned  as  being  the  foundation 
of  extradition  proceedings.  Indeed,  the  enumeration  of  offences 
in  most  of  these  treaties,  and  especially  in  the  treaty  now  under 
consideration,  is  so  specific,  and  marked  by  such  a  clear  line  in 
regard  to  the  magnitude  and  importance  of  those  offences,  that 
it  is  impossible  to  give  any  other  interpretation  to  it  than  that 
of  the  exclusion  of  the  right  of  extradition  for  any  others. 

It  is,  therefore,  very  clear  that  this  treaty  did  not  intend  to 
depart  in  this  respect  from  the  recognized  public  law  which  had 
prevailed  in  the  absence  of  treaties,  and  that  it  was  not  intended 
that  this  treaty  should  be  used  for  any  other  purpose  than  to 
secure  the  trial  of  the  person  extradited  for  one  of  the  offences 
enumerated  in  the  treaty.  This  is  not  only  apparent  from  the 
general  principle  that  the  specific  enumeration  of  certain  mat- 
ters and  things  implies  the  exclusion  of  all  others,  but  the  entire 
face  of  the  treaty,  including  the  processes  by  which  it  is  to  be 
carried  into  effect,  confirms  this  view  of  the  subject.  It  is  un- 
reasonable to  suppose  that  any  demand  for  rendition  framed 
upon  a  general  representation  to  the  government  of  the  asylum, 
(if  we  may  use  such  an  expression,)  that  the  party  for  whom 
the  demand  was  made  was  guilty  of  some  violation  of  the  laws 
of  the  country  which  demanded  him,  without  specifying  any 
particular  offence  with  which  he  was  charged,  and  even  without 
specifying  an  offence  mentioned  in  the  treaty,  would  receive  any 
serious  attention;  and  yet  such  is  the  effect  of  the  construction 
that  the  party  is  properly  liable  to  trial  for  any  other  offence 
than  that  for  which  he  was  demanded,  and  which  is  described  in 
the  treaty.  There  would,  under  that  view  of  the  subject,  seem 
to  be  no  need  of  a  description  of  a  specific  offence  in  making 
the  demand.  But,  so  far  from  this  being  admissible,  the  treaty 
not  only  provides  that  the  party  shall  be  charged  with  one  of 
the  crimes  mentioned,  to  wit,  murder,  assault  with  intent  to  com- 
mit murder,  piracy,  arson,  robbery,  forgery  or  the  utterance 


UNITED  STATES  v.  RAUSCHER.  351 

of  forged  paper,  but  that  evidence  shall  be  produced  to  the  judge 
or  magistrate  of  the  country  of  which  such  demand  is  made, 
of  the  commission  of  such  an  offence,  and  that  this  evidence 
shall  be  such  as  according  to  the  law  of  that  country  would 
justify  the  apprehension  and  commitment  for  trial  of  the  person 
so  charged.  If  the  proceedings  under  which  the  party  is  ar- 
rested in  a  country  where  he  is  peaceably  and  quietly  living,  and 
to  the  protection  of  whose  laws  he  is  entitled,  are  to  have  no 
influence  in  limiting  the  prosecution  in  the  country  where  the 
offence  is  charged  to  have  been  committed,  there  is  very  little 
use  for  this  particularity  in  charging  a  specific  offence,  requir- 
ing that  offence  to  be  one  mentioned  in  the  treaty,  as  well  as  suf- 
ficient evidence  of  the  party 's  guilt  to  put  him  upon  trial  for  it. 
Nor  can  it  be  said  that,  in  the  exercise  of  such  a  delicate  power 
under  a  treaty  so  well  guarded  in  every  particular,  its  provi- 
sions are  obligatory  alone  on  the  State  which  makes  the  surrender 
of  the  fugitive,  and  that  that  fugitive  passes  into  the  hands  of 
the  country  which  charges  him  with  the  offence,  free  from  all 
the  positive  requirements  and  just  implications  of  the  treaty 
under  which  the  transfer  of  his  person  takes  place.  A  moment 
before  he  is  under  the  protection  of  a  government  which  has  af- 
forded him  an  asylum  from  which  he  can  only  be  taken  under  a 
very  limited  form  of  procedure,  and  a  moment  after  he  is  found 
in  the  possession  of  another  sovereignty  by  virtue  of  that  pro- 
ceeding, but  divested  of  all  the  rights  which  he  had  the  moment 
before,  and  all  the  rights  which  the  law  governing  that  proceed- 
ing was  intended  to  secure. 

If  upon  the  face  of  this  treaty  it  could  be  seen  that  its  sole 
object  was  to  secure  the  transfer  of  an  individual  from  the  ju- 
risdiction of  one  sovereignty  to  that  of  another,  the  argument 
might  be  sound;  but  as  this  right  of  transfer,  the  right  to  de- 
mand it,  the  obligation  to  grant  it,  the  proceedings  under  which 
it  takes  place,  all  show  that  it  is  for  a  limited  and  defined  pur- 
pose that  the  transfer  is  made,  it  is  impossible  to  conceive  of  the 
exercise  of  jurisdiction  in  such  a  case  for  any  other  purpose 
than  that  mentioned  in  the  treaty,  and  ascertained  by  the  pro- 
ceedings under  which  the  party  is  extradited,  without  an  impli- 
cation of  fraud  upon  the  rights  of  the  party  extradited,  and  of 
bad  faith  to  the  country  which  permitted  his  extradition.  No 
such  view  of  solemn  public  treaties  between  the  great  nations  of 
the  earth  can  be  sustained  by  a  tribunal  called  upon  to  give 
judicial  construction  to  them.  .  .  . 


352         THE  PACIFIC  RELATIONS  OF  STATES. 
IN  RE  CASTIONI. 

QUEEN'S  BENCH  DIVISION  OF  THE  HIGH  COUBT  OF  JUSTICE  OF  ENGLAND. 

1890. 
Law  Reports   [1891]   1  Q.  B.  149. 

[The  prisoner,  Castioni,  a  citizen  of  the  canton  of  Ticino, 
Switzerland,  together  with  a  number  of  other  citizens  of  Bellin- 
zona,  seized  the  arsenal  in  that  town,  from  which  they  took  arms 
and  ammunition,  disarmed  the  gendarmes,  and  thence  marched 
upon  the  municipal  palace.  Admission  having  been  refused,  the 
crowd  forced  an  entrance,  and  in  the  course  of  the  attack,  Rossi, 
a  member  of  the  government  who  was  in  the  palace,  was  shot 
and  killed  by  Castioni.  There  was  no  evidence  that  Rossi  was 
known  to  Castioni.  After  obtaining  possession  of  the  palace,  the 
crowd  organized  a  provisional  government  which  remained  in 
control  until  overthrown  by  the  troops  of  the  Swiss  Republic. 
Castioni  fled  to  England  where  he  was  arrested  on  the  requisi- 
tion of  the  Swiss  Government,  and  his  extradition  demanded  on 
a  charge  of  murder.  On  an  application  for  a  writ  of  habeas 
corpus,  Castioni  argued  that  his  offense  was  of  a  political  char- 
acter, and  hence  was  not  extraditable  within  the  meaning  of  the 
Extradition  Act  of  1870  and  the  treaty  of  extradition  between 
Great  Britain  and  Switzerland,  which  provided  in  identical 
words:  "A  fugitive  criminal  shall  not  be  surrendered  if  the 
offence  in  respect  of  which  his  surrender  is  demanded  is  one  of 
a  political  character."] 

DENMAN,  J.  .  .  .  There  has  been  no  legal  decision  as  yet 
upon  the  meaning  of  the  words  contained  in  the  Act  of  1870, 
upon  the  true  meaning  of  which  this  case  mainly  depends. 
...  I  do  not  think  it  is  necessary  or  desirable  that  we  should 
attempt  to  put  into  language,  in  the  shape  of  an  exhaustive 
definition,  exactly  the  whole  state  of  things,  or  every  state  of 
things  which  might  bring  a  particular  case  within  the  descrip- 
tion of  an  offence  of  a  political  character.  I  wish,  however,  to 
express  an  opinion  as  to  one  matter  upon  which  I  entertain  a 
very  strong  opinion.  That  is,  that  if  the  description  given  by 
Mr.  John  Stuart  Mill,  ["Any  offence  committed  in  the  course 
of  or  furthering  of  civil  war,  insurrection,  or  political  commo- 
tion,"] were  to  be  construed  in  the  sense  that  it  really  means 
any  act  which  takes  place  in  the  course  of  a  political  rising 


IN  EE  CASTIONI.  353 

without  reference  to  the  object  and  intention  of  it,  and  other 
circumstances  connected  with  it,  I  should  say  that  it  was  a 
wrong  definition  and  one  which  could  not  be  legally  applied  to 
the  words  in  the  Act  of  Parliament.  Sir  Charles  Russell  sug- 
gested that  "in  the  course  of"  was  to  be  read  with  the  words 
following,  "or  in  furtherance  of,"  and  that  "in  furtherance 
of"  is  equivalent  to  "in  the  course  of."  I  cannot  quite  think 
that  this  was  the  intention  of  the  speaker,  or  is  the  natural  mean- 
ing of  the  expression ;  but  I  entirely  concur  with  the  observation 
of  the  Solicitor-General  that  in  the  other  sense  of  the  words,  if 
they  are  not  to  be  construed  as  merely  equivalent  expressions,  it 
would  be  a  wrong  definition.  I  think  that  in  order  to  bring  the 
case  within  the  words  of  the  Act  and  to  exclude  extradition  for 
such  an  act  as  murder,  which  is  one  of  the  extradition  offences, 
it  must  at  least  be  shown  that  the  act  is  done  in  furtherance  of, 
done  with  the  intention  of  assistance,  as  a  sort  of  overt  act  in 
the  course  of  acting  in  a  political  matter,  a  political  rising,  or  a 
dispute  between  two  parties  in  the  State  as  to  which  is  to  have 
the  government  in  its  hands,  before  it  can  be  brought  within  the 
meaning  of  the  words  used  in  the  Act.  .  .  . 

It  seems  to  me  that  it  is  a  question  of  mixed  law  and  fact — 
mainly  indeed  of  fact — as  to  whether  the  facts  are  such  as  to 
bring  the  case  within  the  restriction  of  s.  3,  and  to  show  that  it 
was  an  offence  of  a  political  character.  I  do  not  think  it  is 
disputed,  or  that  now  it  can  be  looked  upon  as  in  controversy, 
that  there  was  at  this  time  existing  in  Ticino  a  state  of  things 
which  would  certainly  show  that  there  was  more  than  a  mere 
small  rising  of  a  few  people  against  the  law  of  the  State.  I 
think  it  is  clearly  made  out  by  the  facts  of  this  case,  that  there 
was  something  of  a  very  serious  character  going  on — amounting, 
I  should  go  so  far  as  to  say,  in  that  small  community,  to  a  state 
of  war.  There  was  an  armed  body  of  men  who  had  seized  arms 
from  the  arsenal  of  the  State ;  they  were  rushing  into  the  munic- 
ipal council  chamber  in  which  the  Government  of  the  State  used 
to  assemble ;  they  demanded  admission ;  admission  was  refused ; 
some  firing  took  place;  the  outer  gate  was  broken  down;  and  I 
think  it  also  appears  perfectly  plain  from  the  evidence  in  the 
case  that  Castioni  was  a  person  who  had  been  taking  part  in 
that  movement  at  a  much  earlier  stage.  He  was  an  active  party 
in  the  movement;  he  had  taken  part  in  the  binding  of  one 
member  of  the  Government.  Some  time  before  he  arrived  with 
2s  his  pistol  in  his  hand  at  the  seat  of  government,  he  had  gone 


354         THE  PACIFIC  RELATIONS  OF  STATES. 

with  multitudes  of  men,  armed  with  arms  from  the  arsenal,  in 
order  to  attack  the  seat  of  government,  and  I  think  it  must  be 
taken  that  it  is  quite  clear  that  from  the  very  first,  he  was  an 
active  party,  one  of  the  rebellious  party  who  was  acting  and  in 
the  attack  against  the  Government.  ...  At  the  moment  at 
which  Castioni  fired  the  shot,  the  reasonable  presumption  is,  not 
that  it  is  a  matter  of  absolute  certainty  (we  cannot  be  absolutely 
certain  about  anything  as  to  men's  motives),  but  the  reasonable 
assumption  is  that  he,  at  the  moment  knowing  nothing  about 
Rossi,  having  no  spite  or  ill-will  against  Rossi,  as  far  as  we 
know,  fired  that  shot — that  he  fired  it  thinking  it  would  advance 
and  that  it  was  an  act  which  was  in  furtherance  of,  and  done 
intending  it  to  be  in  furtherance  of,  the  very  object  which  the 
rising  had  taken  place  in  order  to  promote,  and  to  get  rid  of  the 
Government,  who,  he  might,  until  he  had  absolutely  got  into  the 
place,  have  supposed  were  resisting  the  entrance  of  the  people 
to  that  place.  .  .  .  There  is  evidence  that  there  was  great 
confusion;  there  is  evidence  of  shots  fired  after  the  shot  which 
Castioni  fired ;  and  all  I  can  say  is,  that  looking  at  it  as  a  ques- 
tion of  fact,  I  have  come  to  the  conclusion  that  at  the  time  at 
which  that  shot  was  fired  he  acted  in  the  furtherance  of  the 
unlawful  rising  to  which  at  that  time  he  was  a  party,  and  an 
active  party — a  person  who  had  been  doing  active  work  from  a 
very  much  earlier  period,  and  in  which  he  was  still  actively  en- 
gaged. That  being  so,  I  think  the  writ  ought  to  issue,  and  that 
we  should  be  acting  contrary  to  the  spirit  of  this  enactment,  and 
to  the  fair  meaning  of  it,  if  we  were  to  allow  him  to  be  detained 
in  custody  longer. 

HAWKINS,  J^  I  am  of  the  same  opinion.  .  .  .  Now  what  is 
the  meaning  of  crime  of  a  political  character?  I  have  thought 
over  this  matter  very  much  indeed,  and  I  have  thought  whether 
any  definition  can  be  given  of  the  political  character  of  the 
crime — I  mean  to  say,  in  language  which  is  satisfactory.  I  have 
found  none  at  all,  and  I  can  imagine  for  myself  none  so  satis- 
factory, and  to  my  mind  so  complete,  as  that  which  I  find  in  a 
work  which  I  have  now  before  me,  and  the  language  of  which 
for  the  purpose  of  my  present  judgment  I  entirely  adopt,  and 
that  is  the  expression  of  my  brother  Stephen  in  his  History  of 
the  Criminal  Law  of  England  in  vol.  ii.,  pp.  70,  71.  I  will  not 
do  more  than  refer  to  the  interpretations,  other  than  those  with 
which  he  agrees,  which  have  been  given  upon  this  expression, 
"political  character";  but  I  adopt  his  definition  absolutely. 


IN  RE  CASTIONI.  355 

' '  The  third  meaning  which  may  be  given  to  the  words,  and  which 
I  take  to  be  the  true  meaning,  is  somewhat  more  complicated 
than  either  of  those  I  have  described.  An  act  often  falls  under 
several  different  definitions.  For  instance,  if  a  civil  war  were 
to  take  place,  it  would  be  high  treason  by  levying  war  against 
the  Queen.  Every  case  in  which  a  man  was  shot  in  action  would 
be  murder.  Whenever  a  house  was  burnt  for  military  purposes 
arson  would  be  committed.  To  take  cattle,  &c.,  by  requisition 
would  be  robbery.  According  to  the  common  use  of  language, 
however,  all  such  acts  would  be  political  offences,  because  they 
would  be  incidents  in  carrying  on  a  civil  war.  I  think,  therefore, 
that  the  expression  in  the  Extradition  Act  ought  (unless  some 
better  interpretation  of  it  can  be  suggested)  to  be  interpreted  to 
mean  that  fugitive  criminals  are  not  to  be  surrendered  for  ex- 
tradition crimes,  if  those  crimes  were  incidental  to  and  formed 
a  part  of  political  disturbances.  I  do  not  wish  to  enter  into 
details  beforehand  on  a  subject  which  might  at  any  moment 
come  under  judicial  consideration."  The  question  has  come 
under  judicial  consideration,  and  having  had  the  opportunity 
before  this  case  arose  of  carefully  reading  and  considering  the 
views  of  my  learned  brother,  having  heard  all  that  can  be  said 
upon  the  subject,  I  adopt  his  language  as  the  definition  that  I 
think  is  the  most  perfect  to  be  found  or  capable  of  being  given 
as  to  what  is  the  meaning  of  the  phrase  which  is  made  use  of  in 
the  Extradition  Act. 

Now,  was  this  act  done  by  Castioni  of  a  political  character? 
.  .  .  1  find  no  evidence  which  satisfies  me  that  his  object  in 
firing  at  Rossi  was  to  take  that  poor  man's  life,  or  to  pay  off  any 
old  grudge  which  he  had  against  him,  or  to  revenge  himself  for 
anything  in  the  least  degree  which  Rossi  or  any  one  of  the  com- 
munity had  ever  personally  done  to  him.  When  it  is  said  that 
he  took  aim  at  Rossi,  there  is  not  a  particle  of  evidence  that 
Rossi  was  even  known  to  him  by  name.  I  cannot  help  thinking 
that  everybody  knows  there  are  many  acts  of  a  political  char- 
acter done  without  reason,  done  against  all  reason ;  but  at  the 
same  time,  one  cannot  look  too  hardly  and  weigh  in  golden  scales 
the  acts  of  men  hot  in  their  political  excitement.  We  know  that 
in  heat  and  in  heated  blood  men  often  do  things  which  are 
against  and  contrary  to  reason ;  but  none  the  less  an  act  of  this 
description  may  be  done  for  the  purpose  of  furthering  and  in 
furtherance  of  a  political  rising,  even  though  it  is  an  act  which 
may  be  deplored  and  lamented,  as  even  cruel  and  against  all 


356         THE  PACIFIC  RELATIONS  OF  STATES. 

reason,  by  those  who  can  calmly  reflect  upon  it  after  the  battle 
is  over. 

For  the  reasons  I  have  expressed,  I  am  of  opinion  that  .  .  . 
the  prisoner  ought  to  be  discharged. 

[STEPHEN,  J.,  delivered  a  concurring  opinion.] 

NOTE. — The  earliest  extradition  treaties  were  generally  made  for  the 
purpose  of  securing  the  return  of  political  offenders  to  the  jurisdiction 
of  the  sovereign  whom  they  had  offended,  Clarke,  The  Law  of  Ex- 
tradition, 18,  but  with  the  growth  of  popular  government  sentiment 
has  so  changed  that  political  offenders  are  now  usually  not  extradit- 
able. The  chief  difficulty  now  arises  in  connection  with  the  deter- 
mination of  what  is  a  political  offense,  for  while  the  term  is  found 
in  many  treaties  there  is  no  agreement  as  to  its  meaning.  See  In  re 
Meunier,  [1894]  2  Q.  B.  415;  In  re  Ezeta  (1894),  62  Fed.  972;  Ornelas  v. 
Ruiz  (1896),  161  U.  S.  502;  In  re  Fedorenko  (1910),  20  Manitoba, 
221;  Oppenheim,  I,  sec.  133;  Piggott,  Extradition,  42;  Moore,  Extradi- 
tion, I,  303;  J.  Arthur  Barrett,  "Extradition  Treaties,"  in  25th  Report 
of  International  Law  Association,  (1908),  101;  the  papers  by  J. 
Reuben  Clark,  Jr.,  Frederick  R.  Coudert,  and  Judge  Julian  W.  Mack 
on  "The  Nature  and  Definition  of  Political  Offense  in  International 
Extradition,"  in  Proceedings  of  the  American  Society  of  International 
Law,  1909,  95-165;  Bonfils  (Fauchille),  sec.  466;  Hyde,  I,  571;  Moore, 
Digest,  IV,  332. 

While  the  surrender  of  a  fugitive  charged  with  crime  may  not 
be  demanded  as  a  matter  of  right  under  international  law,  the  ease 
with  which  individuals  can  now  pass  from  one  jurisdiction  to  another 
necessitates  some  provision  for  the  extradition  of  such  persons.  It 
is  probable  that  the  surrender  of  fugitive  criminals  will  before  many 
years  be  recognized  as  a  duty  on  the  part  of  the  states  where  they 
seek  refuge,  for  the  basis  of  extradition  is  the  common  interest 
of  all  nations  in  the  prevention  and  punishment  of  crime.  At  present, 
however,  extradition  can  be  demanded  only  because  of  legislation  or 
treaty  stipulations.  The  first  extradition  statute  in  the  United  States 
was  enacted  in  1848,  while  it  was  not  until  1870  that  the  British 
Parliament  passed  an  extradition  act.  Extradition  treaties  have 
rapidly  increased  both  in  the  number  negotiated  and  in  the  number 
of  offenses  which  they  cover.  The  first  extradition  agreement  be- 
tween England  and  America  was  embodied  in  article  27  of  the  Jay 
Treaty  of  1794  and  covered  only  two  offenses.  The  present  extra- 
dition treaties  between  the  two  countries,  negotiated  in  1842,  1890, 
1899'  and  1907  apply  to  more  than  thirty  offenses.  The  extradition 
treaty  between  Brazil  and  Uruguay  which  became  effective  January 
15,  1919  permits  the  extradition  under  certain  restrictions  of  persons 
accused  of  any  crime  "of  an  ordinary  nature."  So  general  a  provision 
goes  far  towards  recognizing  extradition  to  be  an  international  duty. 
A  country  whose  municipal  law  does  not  prevent  may  either  sur- 
render or  expel  one  charged  with  an  offense  that  is  not  extraditable. 
As  to  the  power  to  do  this  in  the  United  States,  see  the  discussion  con- 
cerning the  case  of  Arguelles,  Wheaton  (Dana),  sec.  115,  note  73; 


NOTE.  357 

Moore,  Extradition,  I,  33.  It  is  a  general  principle  of  international 
law  that  the  act  for  which  extradition  is  demanded  must  be  criminal 
under  the  law  of  both  countries,  Wright  v.  Henkel  (1903),  190  U.  S.  40. 
A  fugitive  from  the  United  States  who  is  brought  back  by  force  or 
fraud  from  the  country  in  which  he  has  taken  refuge  can  not  claim 
exemption  from  trial  in  the  jurisdiction  where  his  offense  was  com- 
mitted, Ker  v.  Illinois  (1886),  119  U.  S.  436.  A  person  extradited 
under  the  treaty  of  1899  with  Great  Britain  cannot  be  imprisoned 
for  an  offense  other  than  that  for  which  he  was  extradited  even 
though  he  had  been  convicted  and  sentenced  prior  to  his  extradition, 
Johnson  v.  Browne  (1907),  205  U.  S.  309.  The  meaning  of  the  term 
describing  an  offense  in  a  treaty  will  be  determined  by  the  law  of 
the  country  where  the  offense  was  committed,  Benson  v.  McMahon 
(1880),  127  U.  S.  457,  but  the  sufficiency  of  the  evidence  offered  for 
the  commitment  of  the  fugitive  will  be  determined  by  the  law  of  the 
place  where  he  is  found,  Pettit  v.  Walshe  (1904),  194  U.  S.  205.  As 
to  what  evidence  is  necessary  see  Yordi  v.  Nolte  (1909),  215  U.  S. 
227;  In  re  Ezeta  (1894),  62  Fed.  972.  If  an  offender  who  has  been 
extradited  later  commits  another  offense  in  the  country  to  which 
he  has  been  surrendered,  he  may  be  tried  for  the  second  offense 
before  being  tried  for  the  offense  for  which  he  was  extradited,  Collina 
v.  ONeil  (1909),  214  U.  S.  113.  An  offender  who  has  been  extradited 
and  released  on  bail  pending  trial  and  who  goes  out  of  the  country 
and  returns  voluntarily  before  the  time  set  for  the  trial  cannot  be 
arrested  for  another  non-extraditable  offense  until  the  first  one  has 
been  disposed  of,  Cosgrove  v.  Winney  (1899),  174  U.  S.  64.  For  an 
instance  of  surrender  under  very  unusual  circumstances  see  The  Case- 
of  Savarkar  (1911),  Wilson,  The  Hague  Arbitration  Cases,  230,  and 
Scott,  The  Hague  Court  Reports,  275.  The  surrender  of  fugitives  by 
one  State  of  the  American  Union  upon  the  demand  of  another,  com- 
monly called  extradition,  may  be  more  appropriately  termed  rendition. 
See  Moore,  Extradition  and  Interstate  Rendition.  The  rule  of  inter- 
national law  that  an  offender  may  be  tried  only  for  the  offense 
for  which  he  was  extradited  does  not  apply  to  rendition  between  the 
States  of  the  American  Union,  Lascelles  v.  Georgia  (1893),  148  U.  S. 
537. 

Various  considerations  which  enter  into  the  application  and  inter- 
pretation of  extradition  treaties,  particularly  in  the  United  States, 
were  thus  discussed  in  Grin  v.  Shine  (1902),  187  U.  S.  181,  184: 

Good  faith  toward  foreign  powers  with  which  we  have  en- 
tered into  treaties  of  extradition  does  not  require  us  to  sur- 
render persons  charged  with  crime  in  violation  of  those 
well-settled  principles  of  criminal  procedure  which  from  time 
immemorial  have  characterized  Anglo-Saxon  jurisprudence. 
Persons  charged  with  crime  in  foreign  countries,  who  have 
taken  refuge  here,  are  entitled  to  the  same  defenses  as  others 
accused  of  crime  within  our  own  jurisdiction.  We  are  not 
prepared,  however,  to  yield  our  assent  to  the  suggestion  that 
treaties  of  extradition  are  invasions  of  the  right  of  political 
habitation  within  our  territory,  or  that  every  intendment  in 


358         THE  PACIFIC  RELATIONS  OF  STATES. 

proceedings  to  carry  out  these  treaties  shall  be  in  favor  of  the 
party  accused.  Such  treaties  are  rather  the  exceptions  to  the 
general  right  of  political  asylum,  and  an  extension  of  our  im- 
migration laws  prohibiting  the  introduction  of  persons  con- 
victed of  crimes,  18  Stat.  477,  by  providing  for  their  deporation 
and  return  to  their  own  country,  even  before  conviction,  when 
their  surrender  is  demanded  in  the  interests  of  public  justice. 
There  is  such  a  general  acknowledgement  of  the  necessity  of 
such  treaties  that  of  late,  and  since  the  facilities  for  the  es- 
cape of  criminals  have  so  greatly  increased,  most  civilized 
powers  have  entered  into  conventions  for  the  mutual  sur- 
render of  persons  charged  with  the  most  serious  non-political 
crimes.  These  treaties  should  be  faithfully  observed,  and  in- 
terpreted with  a  view  to  fulfill  our  just  obligations  to  other 
powers,  without  sacrificing  the  legal  or  constitutional  rights 
of  the  accused. 

On  extradition  in  general  see  Struycken,  "Des  Droits  de  1'Individu 
en  Matiere  d'Extradition,"  in  21th  Report  of  International  Law  Associa- 
tion (1912),  139;  Clarke,  Extradition;  Piggott,  Extradition  (chiefly 
a  commentary  on  the  British  Extradition  Act  of  1870) ;  Bentwich, 
Leading  Cases  and  Statutes  on  International  Law,  90  (convenient 
summary  of  the  British  Extradition  Act);  Moore,  Extradition  and 
Interstate  Rendition;  Bevilaqua,  Direito  Publico  International,  II,  123; 
Cobbett,  Cases  and  Opinions,  I,  244;  Hyde,  I,  566;  Bonfils  (Fauchille), 
sec.  455;  Moore,  Digest,  IV,  ch.  xiv. 


CHAPTER  X. 

THE  NON-BELLIGERENT   SETTLEMENT   OF   INTER- 
NATIONAL CONTROVERSIES. 

SECTION  1.    ARBITRATION. 
THE  LA  NINFA. 

UNITED  STATES  CIRCUIT  COURT  OF  APPEALS,  NINTH  CIRCUIT.    1896. 
75  Fed.  Rep.  513. 

Appeal  from  the  District  Court  of  the  United  States  for  the 
District  of  Alaska. 

HAWLEY,  District  Judge.  This  is  an  appeal  in  admiralty 
from  a  decree  .  .  .  forfeiting  the  schooner  La  Ninf-a,  upon 
the  ground  that  she  had  been  unlawfully  engaged  in  killing 
seal  in  the  waters  of  Alaska  territory.  See  49  Fed.  575.  The 
libel  charges  that  the  vessel  and  her  crew  "were  engaged  in 
killing  fur  seals  within  the  limits  of  Alaska  territory,  and  in 
the  waters  thereof,  in  violation  of  section  1956  of  the  Revised 
Statutes  of  the  United  States."  .  .  .  There  is  no  evidence 
that  a  single  seal  had  been  killed  within  one  marine  league  of 
Alaska,  whether  of  the  mainland  or  any  of  its  islands.  The 
evidence  does  show  that  the  killing  of  the  seals  was  about  10 
miles  from  shore. 

The  question  arises  whether  Behring  Sea,  at  a  distance  of 
more  than  one  league  from  the  American  shore,  is  Alaskan  ter- 
ritory, or  in  the  waters  thereof,  or  within  the  dominion  of  the 
United  States  in  the  waters  of  Behring  Sea.  Section  1956  of 
the  Revised  Statutes  reads  as  follows: 

"Sec.  1956.  No  person  shall  kill  any  otter,  mink,  marten  or 
fur-seal,  or  other  fur-bearing  animal,  within  the  limits  of  Alaska 
territory,  or  in  the  waters  thereof;  .  .  .  and  all  vessels, 
their  tackle,  apparel,  furniture  and  cargo,  found  engaged  in 
violation  of  this  section  shall  be  forfeited,"  etc.  . 

Section  3  of  the  act  to  provide  for  the  protection  of  the  salmon 

359 


360  NON-BELLIGERENT  SETTLEMENT. 

fisheries  of  Alaska,  approved  March  2,  1889,  provides  that  sec- 
tion 1956  "is  hereby  declared  to  include  and  apply  to  all  the 
dominion  of  the  United  States  in  the  waters  of  Behring  Sea; 
and  it  shall  be  the  duty  of  the  President,  at  a  timely  season  in 
each  year,  to  issue  his  proclamation  and  cause  the  same  to  be 
published  .  .  .  warning  all  persons  against  entering  said 
waters  for  the  purpose  of  violating  the  provisions  of  said  sec- 
tion," etc.  By  these  provisions,  the  question  as  to  what  the 
boundaries  were  over  which  the  United  States  had  dominion  was 
not  intended  to  be,  and  was  not,  determined  by  the  amendatory 
act.  The  question  was  left  open  for  future  consideration.  .  .  . 

The  government  relies  solely  upon  the  provisions  of  the  stat- 
ute to  sustain  the  decree  of  the  district  court,  and  contends  that 
the  decision  of  the  Supreme  Court  in  Re  Cooper,  143  U.  S.  474, 
12  Sup.  Ct.  453,  justifies  the  affirmance  of  the  decree.  That 
decision  does  not  reach  the  direct  point  here  in  controversy. 
The  court  there  held  that  the  question  was  a  political  one,  in 
which  the  United  States  had  asserted  a  doctrine  in  opposition 
to  the  views  contended  for  by  the  petitioner;  that  the  negotia- 
tions were  then  pending  in  relation  to  the  particular  subject; 
but  the  court  declined  to  decide  whether  the  government  was 
right  or  wrong  in  its  contention,  or  to  review  the  action  of  the 
political  departments  upon  the  question  under  review.  The 
opinion  shows  that  the  court  considered  it  a  grave  question. 
It  recites  much  of  the  important  history  relative  to  the  disputed 
question,  but  the  question  itself  was  not  decided.  The  case  was 
disposed  of  upon  other  grounds.  What  was  said  concerning  the 
disputed  questions  had  reference  to  the  conditions  then  existing. 
The  conditions  now  existing  are  entirely  different.  The  negotia- 
tions then  pending  [between  the  United  States  and  Great 
Britain]  were  brought  about  by  the  asserted  claim  of  the  United 
States  to  proprietary  rights  in  the  waters  of  Behring  Sea,  and  in 
the  fur-bearing  animals  which  frequent  it  and  its  islands,  which 
was  disputed  by  other  nations,  particularly  by  England,  the 
property  of  whose  subjects  had  been  from  time  to  time  seized 
by  the  United  States  for  alleged  violations  of  the  statutes  in 
question ;  and  these  controversies  resulted  in  submitting  the  dis- 
puted question  to  an  arbitration.  27  Stat.  948.  Article  1  pro- 
vides that: 

"The  questions  which  have  arisen  between  the  government  of 
the  United  States  and  the  government  of  her  Britannic  majesty, 
concerning  the  jurisdictional  rights  of  the  United  States  in  the 


THE  LA  NINFA.  361 

waters  of  Behring  Sea,  and  concerning  also  the  preservation  of 
the  fur-seal  in,  or  habitually  resorting  to  the  said  sea,  and  the 
rights  of  the  citizens  and  subjects  of  either  country,  as  regards 
the  taking  of  fur-seal  in,  or  habitually  resorting  to  the  said 
waters,  shall  be  submitted  to  a  tribunal  of  arbitration."  .  .  . 

By  the  fourteenth  article  of  the  treaty  or  convention  submit- 
ting the  questions  to  arbitration  it  was  provided  that: 

' '  The  high  contracting  parties  engage  to  consider  the  result  of 
the  proceedings  of  the  tribunal  of  arbitration  as  a  full,  perfect 
and  final  settlement  of  all  the  questions  referred  to  by  the 
arbitrators. ' ' 

In  submitting  the  questions  to  the  high  court  of  arbitration, 
the  government  agreed  to  be  bound  by  the  decision  of  the  arbi- 
trators, and  has  since  passed  an  act  to  give  effect  to  the  award 
rendered  by  the  tribunal  of  arbitration.  28  Stat.  52.  The 
award  should,  therefore,  be  considered  as  having  finally  settled 
the  rights  of  the  United  States  in  the  waters  of  Alaska  and  of 
Behring  Sea,  and  all  questions  concerning  the  rights  of  its  own 
citizens  and  subjects  therein,  as  well  as  of  the  citizens  and  sub- 
jects of  other  countries. 

The  true  interpretation  of  section  1956,  and  of  the  amend- 
ment thereto,  depends  upon  the  dominion  of  the  United  States 
in  the  waters  of  Behring  Sea, — such  dominion  therein  as  was 
"ceded  by  Russia  to  the  United  States  by  treaty  of  1867."  This 
question  has  been  settled  by  the  award  of  the  arbitrators,  and 
this  settlement  must  be  accepted  "as  final."  It  follows  there- 
from that  the  words  "in  the  waters  thereof,"  as  used  in  section 
1956,  and  the  words  "dominion  of  the  United  States  in  the 
waters  of  Behring  Sea,"  in  the  amendment  thereto,  must  be 
construed  to  mean  the  waters  within  three  miles  from  the  shores 
of  Alaska.  On  coming  to  this  conclusion,  this  court  does  not 
decide  the  question  adversely  to  the  political  department  of  the 
government.  It  is  undoubtedly  true,  as  has  been  decided  by  the 
Supreme  Court,  that  in  pending  controversies  doubtful  ques- 
tions, which  are  undecided,  must  be  met  by  the  political  depart- 
ment of  the  government.  "They  are  beyond  the  sphere  of  judi- 
cial cognizance,"  and,  "if  a  wrong  has  been  done,  the  power 
of  redress  is  with  Congress,  not  with  the  judiciary."  The 
Cherokee  Tobacco  11  Wall.  616-621.  But  in  the  present  case 
there  is  no  pending  question  left  undetermined  for  the  political 
department  to  decide.  It  has  been  settled.  The  award  is  to  be 
construed  as  a  treaty  which  has  become  final.  A  treaty,  when 


362  NON-BELLIGERENT  SETTLEMENT. 

accepted  and  agreed  to,  becomes  the  supreme  law  of  the  land. 
It  binds  courts  as  much  as  an  act  of  Congress.  In  Head  Money 
Cases,  112  U.  S.  580-598,  5  Sup.  Ct.  254,  the  court  said : 

"A  treaty  is  primarily  a  contract  between  independent  na- 
tions. It  depends  for  the  enforcement  of  its  provisions  on  the 
interest  and  honor  of  the  governments  which  are  parties  to  it. 
...  A  treaty,  then,  is  the  law  of  the  land,  as  an  act  of  Con- 
gress is,  whenever  its  provisions  prescribe  a  rule  by  which  the 
rights  of  the  private  citizen  or  subject  may  be  determined.  And 
when  such  rights  are  of  a  nature  to  be  enforced  in  a  court  of 
justice,  that  court  resorts  to  the  treaty  for  a  rule  of  decision  for 
the  case  before  it,  as  it  would  to  a  statute."  Chew  Heong  v. 
U.  S.,  112  U.  S.  536,  540,  565,  5  Sup.  Ct.  255 ;  U.  S.  v.  Rauscher, 
119  U.  S.  407-419,  7  Sup.  Ct.  234. 

The  duty  of  courts  is  to  construe  and  give  effect  to  the  latest 
expression  of  the  sovereign  will ;  hence  it  follows  that,  whatever 
may  have  been  the  contention  of  the  government  at  the  time 
In  re  Cooper  was  decided,  it  has  receded  therefrom  since  the 
award  was  rendered  by  an  agreement  to  accept  the  same  "as  a 
full,  complete,  and  final  settlement  of  all  questions  referred  to 
by  the  arbitrators,"  and  from  the  further  fact  that  the  govern- 
ment since  the  rendition  of  the  award  has  passed  ' '  an  act  to  give 
effect  to  the  award  rendered  by  the  tribunal  of  arbitration." 

The  decree  of  the  district  court  is  reversed,  and  the  cause  re- 
manded, with  instructions  to  the  district  court  to  dismiss  the 
libel. 

NOTE. — One  of  the  most  important  tangible  results  of  The  Hague 
Conferences  was  the  creation  of  a  Permanent  Court  of  Arbitration, 
which  was  instituted  at  the  Conference  of  1899  and  strengthened  at 
the  Conference  of  1907.  The  Hague  Convention  for  the  Pacific  Settle- 
ment of  International  Disputes,  adopted  in  1907,  was  based  upon  the 
underlying  principle  stated  in  Article  37: 

International  arbitration  has  for  its  object  the  settlement 
of  disputes  between  States  by  judges  of  their  own  choice  and 
on  the  basis  of  respect  for  law. 

Recourse  to  arbitration  implies  an  engagement  to  submit 
in  good  faith  to  the  award. 

The  first  case  submitted  to  the  Permanent  Court  was  the  Pious 
Fund  Controversy  between  the  United  States  and  Mexico,  which  was 
decided  in  1902.  The  decisions  thus  far  rendered  by  the  Permanent 
Court  are  not  particularly  important  from  a  juristic  standpoint.  Their 
chief  value  lies  in  the  fact  that  they  demonstrate  the  feasibility  of 


NOTE.  363 

settling  many  international  controversies  by  arbitral  methods.  They 
are  accessible  in  Wilson,  The  Hague  Arbitration  Cases,  and  in  Scott, 
The  Hague  Court  Reports.  The  latter  is  the  more  complete  and  con- 
tains also  the  reports  of  the  International  Commissions  of  Inquiry 
appointed  in  accordance  with  the  provisions  of  The  Hague  Convention 
for  the  Pacific  Settlement  of  International  Disputes,  1899,  Title  III. 

The  literature  of  international  arbitration  is  extensive.  Among 
the  most  valuable  works  are  the  following:  Proceedings  of  the 
American  Society  for  Judicial  Settlement  of  International  Disputes 
(published  annually  1910  to  1916) ;  Andrew  D.  White,  Autobiography, 
II,  250  (account  of  the  First  Hague  Conference  by  the  president  of 
the  American  delegation);  Holls,  The  Peace  Conference  at  The  Hague 
(by  an  American  delegate  to  the  First  Conference);  Scott,  The  Hague 
Peace  Conferences  of  1899  and  1907  (by  an  American  delegate  to  the 
Second  Conference);  Cobbett,  Cases  and  Opinions,  I,  24,  353;  Evans 
Darby,  International  Tribunals;  Hershey,  Essentials,  327;  Higgins, 
The  Hague  Peace  Conferences;  Lapradelle  and  Politis,  Recueil  des 
Arbitrages  Internationaux ;  Morris,  International  Arbitration  and  Pro- 
cedure; Phillipson,  Studies  in  International  Law;  Ralston,  Interna- 
tional Arbitral  Law  and  Procedure;  Sir  Frederick  Pollock,  "The  Mod- 
ern Law  of  Nations  and  the  Prevention  of  War,"  Cambridge  Modern 
History,  XII,  703.  Moore,  International  Arbitrations;  Bonfils  (Fau- 
chille),  sec.  944;  Hyde,  II,  111;  Moore,  Digest,  VII,  24. 

The  most  important  step  yet  taken  toward  the  settlement  of  inter- 
national controversies  by  judicial  methods  is  the  establishment  by 
the  League  of  Nations  of  the  Permanent  Court  of  International  Jus- 
tice. This  tribunal  consists  of  eleven  titular  and  four  supplementary 
judges  who  are  to  hold  office  for  nine  years.  The  first  panel  of  judges 
has  been  chosen  and  the  Court  has  been  organized  with  its  seat  at 
The  Hague.  Unlike  tribunals  of  arbitration  this  Court  is  a  court  of 
law,  and  it  is  empowered  to  hear  and  to  decide  any  controversy  which 
may  be  submitted  to  it.  The  distinction  between  justiciable  and  non- 
justiciable  controversies  is  not  recognized.  While  the  Court  does  not 
possess  compulsory  jurisdiction,  article  16  of  the  Covenant  provides 
that  if  any  member  of  the  League  shall  go  to  war  without  first  sub- 
mitting its  case  to  the  Court  or  to  some  arbitral  body,  its  action  shall 
be  regarded  as  an  act  of  war  against  all  the  other  members  of  the 
League.  See  Hudson,  "The  Permanent  Court  of  International  Jus- 
tice," Harvard  Law  Review,  XXXV,  245.  The  statute  establishing 
the  Court  forms  an  appendix  to  this  article.  Also  see  Cobbett,  Cases 
and  Opinions,  I,  41;  Hyde,  II,  141. 


364  NON-BELLIGERENT  SETTLEMENT. 


SECTION  2.    REPRISALS. 

WILLIAM  GRAY,  ADMINISTRATOR,  v.   THE 
UNITED  STATES. 

COUET  OF  CLAIMS  OF  THE  UNITED  STATES.    1886. 
21  Ct,  Cl.  340. 

[By  the  treaty  of  1800  between  the  United  States  and  France 
it  was  agreed  that  in  return  for  the  relinquishment  by  France 
of  all  exclusive  privileges  secured  to  her  by  the  treaties  of  1778 
the  United  States  would  relinquish  all  claims  of  American  citi- 
zens against  France  growing  out  of  French  depredations  upon 
American  commerce  between  1791  and  1800.  In  1885  Congress 
enacted  a  law  authorizing  American  citizens  having  "valid 
claims  to  indemnity  upon  the  French  Government  arising  out  of 
illegal  captures,  detentions,  seizures,  condemnations,  and  con- 
fiscations" prior  to  the  treaty  of  1800,  to  bring  suit  in  the  Court 
of  Claims,  and  directing  that  court  to  "determine  the  validity 
and  amount"  thereof.  Under  this  act  the  present  suit  was 
brought  for  indemnity  for  the  loss  of  the  Sally,  a  schooner  owned 
and  commanded  by  Americans,  laden  with  an  American  cargo, 
and  which,  while  on  a  voyage  from  Massachusetts  to  Spain, 
was  seized  on  the  high  seas  by  a  French  privateer,  taken  to  a 
French  port  and  condemned  for  the  violation  of  a  French  regu- 
lation "concerning  the  navigation  of  neutrals."] 

DAVIS,  J.,  delivered  the  opinion  of  the  court : 

This  claim,  one  of  the  class  popularly  called  "French  Spolia- 
tions, ' '  springs  from  the  policy  of  the  French  revolutionary  gov- 
ernment between  the  execution  of  King  Louis  XVI  and  the  year 
1801,  a  policy  which  led  to  the  detention,  seizure,  condemnation, 
and  confiscation  of  our  merchant  vessels  peacefully  pursuing 
legitimate  voyages  upon  the  high  seas.  .  .  .  [Here  follows 
an  elaborate  account  of  the  relations  between  the  United  States 
and  France  from  1777  to  1800.] 

The  defendants  contend  that  the  seizures  were  justified,  as 
war  existed  between  this  country  and  France  during  the  period 
in  question ;  and,  as  we  could  have  no  claim  against  France  for 
seizure  of  private  property  in  time  of  war,  the  claimants  could 
have  no  resulting  claim  against  their  own  Government;  that  is, 


GRAY,  ADMINISTRATOR  v.  UNITED  STATES.     365 

the  claims,  being  invalid,  could  not  form  a  subject  of  set-off  as 
it  is  urged  these  claims  did  in  the  second  article  of  the  treaty  of 
1800.  It  therefore  becomes  of  great  importance  to  determine 
whether  there  was  a  state  of  war  between  the  two  countries. 

It  is  urged  that  the  political  and  judicial  departments  of  each 
Government  recognized  the  other  as  an  enemy ;  that  battles  were 
fought  and  blood  shed  on  the  high  seas ;  that  property  was  cap- 
tured by  each  from  the  other  and  condemned  as  prize;  that 
diplomatic  and  consular  intercourse  was  suspended,  and  that 
prisoners  had  been  taken  by  each  Government  from  the  other 
and  "held  for  exchange,  punishment,  or  retaliation,  according 
to  the  laws  and  usages  of  war."  While  these  statements  may  be 
in  substance  admitted  and  constitute  very  strong  evidence  of 
the  existence  of  war,  still  they  are  not  conclusive,  and  the  facts, 
even  if  they  existed  to  the  extent  claimed,  may  not  be  inconsist- 
ent with  a  state  of  reprisals  straining  the  relations  of  the  States 
to  their  utmost  tension,  daily  threatening  hostilities  of  a  more 
serious  nature,  but  still  short  of  that  war  which  abrogates 
treaties,  and  after  conclusion  of  which  parties  must,  as  between 
themselves,  begin  international  life  anew. 

The  French  issued  decree  after  decree  against  our  peaceful 
commerce,  but,  on  the  ground  of  military  necessity  incident  to 
the  war  with  Great  Britain  and  her  allies;  they  refused  to  re- 
ceive our  minister,  but  in  that  refusal,  insolent  though  it  was, 
there  is  nothing  to  show  that  war  was  intended,  and  the  mere 
refusal  to  receive  a  minister  does  not  in  itself  constitute  a  ground 
for  hostilities. 

The  Attorney-General,  Mr.  Lee,  in  August,  1798,  very  strongly 
sustained  the  defendant's  position,  for  he  wrote  the  Secretary 
of  State  that  there  existed  with  France  "not  only  an  actual 
maritime  war,"  but  "a  maritime  war  authorized  by  both  na- 
tions;" that  consequently  France  was  an  enemy,  to  aid  and 
assist  whom  would  be  treason  on  the  part  of  a  citizen  of  the 
United  States;  but  we  cannot  agree  that  this  extreme  position 
was  authorized  by  the  facts  or  the  law. 

Congress  enacted  the  various  statutes  hereinafter  referred  to 
in  detail,  and  when  one  of  them,  the  act  providing  an  additional 
armament,  was  passed  in  the  House,  Edward  Livingston,  who 
opposed  it,  said: 

"Let  no  man  flatter  himself  that  the  vote  which  has  been 
given  is  not  a  declaration  of  war.  Gentlemen  know  that  this 
is  the  case." 


366  NON-BELLIGERENT  SETTLEMENT. 

Those  were  times  of  great  excitement;  between  danger  of  in- 
ternational contest  and  heat  of  internal  partisan  conflict  states- 
men could  not  look  at  the  situation  with  the  calmness  possessed 
by  their  successors,  and  those  successors,  with  some  exceptions 
to  be  sure,  regarded  the  relations  between  the  countries  as  not 
amounting  to  war. 

The  question  has  been  carefully  examined  by  authorized  and 
competent  officers  of  the  political  department  of  the  Govern- 
ment, and  we  may  turn  to  their  statements  as  expository  of  the 
view  of  that  branch  upon  the  subject.  .  .  .  [Here  follow 
extracts  from  various  reports  to  Congress  expressing  views  simi- 
lar to  those  of  Senator  Livingston  and  Senator  Sumner.] 

Mr.  Livingston  reported  to  the  Senate  in  1830  that — 

' '  This  was  not  a  case  of  war,  and  the  stipulations  which  recon- 
ciled the  two  nations  was  not  a  treaty  of  peace ;  it  was  a  conven- 
tion for  the  putting  an  end  to  certain  differences. 
Nowhere  is  the  slightest  expression  on  either  side  that  a  state 
of  war  existed,  which  would  exonerate  either  party  from  the 
obligations  of  making  those  indemnities  to  the  other.  .  .  . 
The  convention  which  was  the  result  of  these  negotiations  is  not 
only  in  its  form  different  from  a  treaty  of  peace,  but  it  contains 
stipulations  which  would  be  disgraceful  to  our  country  on  the 
supposition  that  it  terminated  a  state  of  war.  .  .  .  Neither 
party  considered  then  they  were  in  a  state  of  war."  (Rep.  4, 
445.)  .  .  . 

Mr.  Sumner  considered  the  acts  of  Congress  as  "  vigorous 
measures,"  putting  the  country  "in  an  attitude  of  defence;" 
and  that  the  "painful  condition  of  things,  though  naturally 
causing  great  anxiety,  did  not  constitute  war."  (38th  Cong., 
1st  sess.,  Rep.  41,  1864.) 

The  judiciary  also  had  occasion  to  consider  the  situation,  and 
the  learned  counsel  for  the  defendants  cites  us  to  the  opinion  of 
Mr.  Justice  Moore,  delivered  in  the  case  of  Bass  v.  Tingy,  (4 
Dall.  37),  wherein  the  facts  were  as  follows:  Tingy,  commander 
of  the  public  armed  ship  the  Ganges,  had  libelled  the  American 
ship  Eliza,  Bass,  master,  setting  forth  that  she  had  been  taken 
on  the  high  seas  by  a  French  privateer  the  31st  March,  1799, 
and  retaken  by  him  late  in  the  following  April,  wherefore  salv- 
age was  claimed  and  allowed  below.  Upon  appeal  the  judgment 
was  affirmed.  Each  of  the  four  justices  present  delivered  an 
opinion. 


GRAY,  ADMINISTRATOR  v.  UNITED  STATES.     367 

Justice  Moore,  answering  the  contention  that  the  word 
"enemy"  could  not  be  applied  to  the  French,  says: 

"How  can  the  character  of  the  parties  engaged  in  hostility  of 
war  be  otherwise  described  than  by  the  denomination  of  enemies  ? 
It  is  for  the  honor  and  dignity  of  both  nations,  therefore,  they 
should  be  called  enemies;  for  it  is  by  that  description  alone 
that  either  could  justify  or  excuse  the  scene  of  bloodshed,  dep- 
redation, and  confiscation  which  has  unhappily  occurred,  and 
surely  Congress  could  only  employ  the  language  of  the  act  of 
June  13,  1798,  towards  a  nation  whom  she  considered  as  an 
enemy." 

Justice  Washington  considers  the  very  point  now  in  dispute, 
saying  (p.  40)  : 

"The  decision  of  the  question  must  depend  upon  . 
whether  at  the  time  of  passing  the  act  of  Congress  of  the  2d  of 
March,  1799,  there  subsisted  a  state  of  war  between  two  nations. 
It  may,  I  believe,  be  safely  laid  down  that  every  contention  by 
force  between  two  nations,  in  external  matters,  under  the  au- 
thority of  their  respective  Governments,  is  not  only  war,  but 
public  war.  If  it  be  decreed  in  form  it  is  called  solemn  and  is 
of  the  perfect  kind,  because  one  whole  nation  is  at  war  with 
another  whole  nation,  and  all  the  members  of  the  nation  declar- 
ing war  are  authorized  to  commit  hostilities  against  the  members 
of  the  other  in  every  place  and  under  every  circumstance.  In 
such  a  war  all  the  members  act  under  a  general  authority,  and 
all  the  rights  and  consequences  of  war  attach  to  their  condition. 
But  hostilities  may  subsist  between  two-nations  more  confined  in 
its  nature  and  extent,  being  limited  as  to  places,  persons,  and 
things,  and  this  is  more  properly  termed  imperfect  war,  because 
not  solemn,  and  because  those  who  are  authorized  to  commit  hos- 
tilities act  under  special  authority  and  can  go  no  further  than 
to  the  extent  of  their  commission.  Still,  however,  it  is  public 
war,  because  it  is  an  external  contention  by  force  between  some 
of  the  members  of  the  two  nations,  authorized  by  the  legitimate 
powers.  It  is  a  war  between  the  two  nations,  though  all  the 
members  are  not  authorized  to  commit  hostilities  such  as  in  a 
solemn  war,  where  the  Government  retains  the  general  power." 

Applying  this  rule  he  held  that  "an  American  and  French 
armed  vessel,  combating  on  the  high  seas,  were  enemies,"  but 
added  that  France  was  not  styled  "an  enemy"  in  the  statutes, 
becanse  "the  degree  of  hostility  meant  to  be  carried  on  was 
sufficiently  described  without  declaring  war,  or  declaring  that 


368  NON-BELLIGERENT  SETTLEMENT. 

we  were  at  war.  Such  a  declaration  by  Congress  might  have 
constituted  a  perfect  state  of  war  which  was  not  intended  by 
the  Government." 

Justice  Chase,  who  had  tried  the  case  below,  said : 

"It  is  a  limited,  partial  war.  Congress  has  not  declared  war 
in  general  terms,  but  Congress  has  authorized  hostilities  on  the 
high  seas  by  certain  persons  in  certain  cases.  There  is  no  au- 
thority given  to  commit  hostilities  on  land,  to  capture  unarmed 
French  vessels,  nor  even  to  capture  armed  French  vessels  in  a 
French  port,  and  the  authority  is  not  given  indiscriminately  to 
every  citizen  of  America  against  every  citizen  of  France,  but 
only  to  citizens  appointed  by  commissions  or  exposed  to  imme- 
diate outrage  and  violence.  ...  If  Congress  had  chosen  to 
declare  a  general  war,  France  would  have  been  a  general  enemy ; 
having  chosen  to  wage  a  partial  war,  France  was  .  .  .  only 
a  partial  enemy." 

Justice  Patterson  concurred,  holding  that  the  United  States 
and  France  were  "in  a  qualified  state  of  hostility" — war  "quoad 
hoc."  As  far  as  Congress  tolerated  and  authorized  it,  so  far 
might  we  proceed  in  hostile  operations  and  the  word  "enemy" 
proceeds  the  full  length  of  this  qualified  war,  and  no  further. 

The  Supreme  Court,  therefore,  held  the  state  of  affairs  now 
under  discussion  to  constitute  partial  warfare,  limited  by  the 
acts  of  Congress. 

The  instructions  to  Ellsworth,  Davie,  and  Murray,  dated 
October  22,  1799,  did  not  recognize  a  state  of  war  as  existing,  or 
as  having  existed,  for  they  said  the  conduct  of  France  would 
have  justified  an  immediate  declaration  of  war,  but  the  United 
States,  desirous  of  maintaining  peace,  contented  themselves 
"with  preparations  for  defence  and  measures  calculated  to  de- 
fend their  commerce."  (Doc.  102,  p.  561.)  Yet  all  the  measures 
relied  upon  as  evidence  of  existing  war  had  taken  effect  prior 
to  the  date  of  these  instructions.  So  the  ministers,  in  a  com- 
munication to  the  French  authorities,  said,  as  to  the  acts  of 
Congress,  "which  the  hard  alternative  of  abandoning  their  com- 
merce to  ruin  imposed,"  that  "far  from  contemplating  a  co- 
operation with  the  enemies  of  the  Republic  [they]  did  not  even 
authorize  reprisals  upon  her  merchantmen,  but  were  restricted 
simply  to  the  giving  of  safety  to  their  own,  till  a  moment  should 
arrive  when  their  sufferings  could  be  heard  and  redressed." 
(Doc.  102,  p.  583.) 

France  did  not  consider  that  war  existed,  for  the  minister  said 


GRAY,  ADMINISTRATOR  v.  UNITED  STATES.     369 

that  the  suspension  of  his  functions  was  not  to  be  regarded  as  a 
rupture  between  the  countries,  "but  as  a  mark  of  just  discon- 
tent" (15  Nov.,  1796,  Foreign  Relations,  vol.  I,  p.  583),  while 
J.  Bonaparte  and  his  colleagues  termed  it  a  "transient  misun- 
derstanding" (Doc.  102,  p.  590),  a  state  of  "misunderstanding" 
which  had  existed  "through  the  acts  of  some  agents  rather  than 
by  the  will  of  the  respective  '  Governments, '  "  and  which  had 
not  been  a  state  of  war,  at  least  on  the  side  of  France.  (Ib.  616.) 

The  opinion  of  Congress  at  the  time  is  best  gleaned  from  the 
laws  which  it  passed.  The  important  statute  in  this  connection 
is  that  of  May  28,  1798  (1  Stat.  L.,  561),  entitled  "An  act  more 
effectually  to  protect  the  commerce  and  coasts  of  the  United 
States."  Certainly  there  was  nothing  aggressive  or  warlike  in 
this  title. 

The  act  recites  that,  whereas  French  armed  vessels  have  com- 
mitted depredations  on  American  commerce  in  violation  of  the 
law  of  nations  and  treaties  between  the  United  States  and 
France,  the  President  is  authorized — not  to  declare  war,  but  to 
direct  naval  commanders  to  bring  into  our  ports,  to  be  proceeded 
against  according  to  the  law  of  nations,  any  such  vessels  "which 
shall  have  committed,  or  which  shall  be  found  hovering  on  the 
coasts  of  the  United  States  for  the  purpose  of  committing,  depre- 
dations on  the  vessels  belonging  to  the  citizens  thereof ;  and  also 
to  retake  any  ship  or  vessel  of  any  citizen  or  citizens  of  the 
United  States  which  may  have  been  captured  by  any  such 
armed  vessel." 

This  law  contains  no  declaration  or  threat  of  war;  it  is  dis- 
tinctly an  act  to  protect  our  coasts  and  commerce.  It  says  that 
our  vessels  may  arrest  a  vessel  raiding  or  intending  to  raid  upon 
that  commerce,  and  that  such  vessel  shall  not  be  either  held  by 
an  executive  authority  or  confiscated,  but  turned  over  to  the 
admiralty  courts — recognized  international  tribunals — for  trial, 
not  according  to  municipal  statutes,  as  was  being  done  in  France, 
but  according  to  the  law  of  nations.  Such  a  statute  hardly 
seems  necessary,  for  if  it  extended  at  all  the  police  powers  of 
naval  commanders  upon  the  high  seas  it  was  in  the  very  slightest 
degree,  and  it  is  highly  improbable  that  then  or  now,  with  or 
without  specific  statutory  or  other  authority,  an  American  naval 
commander  would  in  fact  allow  a  vessel  rightfully  flying  the  flag 
of  the  United  States  to  be  seized  on  the  high  seas  or  near  our 
coasts  by  the  cruisers  of  another  Government.  But  if  the  act 
did  enlarge  the  power  of  such  officers,  and  give  to  them  author- 


370  NON-BELLIGERENT  SETTLEMENT. 

ity  not  theretofore  possessed,  it  tied  them  down  to  specific  action 
in  regard  to  specified  vessels. 

They  might  seize  armed  vessels  only,  and  only  those  armed 
vessels  which  had  already  committed  depredations,  or  those 
which  were  on  our  coast  for  the  purpose  of  committing  depreda- 
tions, and  they  might  retake  an  American  vessel  captured  by 
such  an  armed  vessel.  This  statute  is  a  fair  illustration  of  the 
class  of  laws  enacted  at  this^time;  they  directed  suspension  of 
commercial  relations  until  the  end  of  the  next  session  of  Con- 
gress, not  indefinitely  (June  13,  1798,  ib.  §  4,  p.  566)  ;  they  gave 
power  to  the  President  to  apprehend  the  subjects  of  hostile 
nations  whenever  he  should  make  "public  proclamation"  of 
war  (July  6,  1798,  ib.  577),  and  no  such  proclamation  was  made ; 
they  gave  him  authority  to  instruct  our  armed  vessels  to  seize 
French  "armed,"  not  merchant,  vessels  (July  9,  1798,  ib.,  578), 
together  with  contingent  authority  to  augment  the  army  in  case 
war  should  break  out  in  case  of  imminent  danger  of  invasion. 
(March  2,  1799,  ib.,  725.)  Within  a  few  months  after  this  last 
act  of  Congress  the  Ellsworth  mission  was  on  its  way  to  France 
to  begin  the  negotiations  which  resulted  in  the  treaty  of  1800 
and  even  the  act  abrogating  the  treaties  of  1778  does  not  speak 
of  war  as  existing,  but  of  "the  system  of  predatory  violence 
.  .  .  hostile  to  the  rights  of  a  free  and  independent  nation." 
(July  7,  1798,  ib.,  578.) 

If  war  existed,  why  authorize  our  armed  vessels  to  seize 
French  armed  vessels?  War  itself  gave  that  right,  as  well  as 
the  right  to  seize  merchantmen,  which  the  statutes  did  not  per- 
mit. If  war  existed  why  empower  the  President  to  apprehend 
foreign  enemies?  War  itself  placed  that  duty  upon  him  as  a 
necessary  and  inherent  incident  of  military  command.  Why, 
if  there  was  war,  should  a  suspension  of  commercial  intercourse 
be  authorized,  for  what  more  complete  suspension  of  that  inter- 
course could  there  be  than  the  very  fact  of  war?  And  why,  if 
war  did  exist,  should  the  President,  so  late  as  March,  1799,  be 
empowered  to  increase  the  army  upon  one  of  two  conditions, 
viz.,  that  war  should  break  out  or  invasion  be  imminent,  that  is, 
if  war  should  break  out  in  the  future  or  invasion  become  im- 
minent in  the  future  ? 

Upon  these  acts  of  Congress  alone  it  seems  difficult  to  found 
a  state  of  war  up  to  March,  1799,  while  in  February,  1800,  we 
find  a  statute  suspending  enlistments,  unless,  during  the  recess 
of  Congress,  "war  should  break  out  with  France."  This  is  proof 


GRAY,  ADMINISTRATOR  v.  UNITED  STATES.     371 

positive  that  Congress  did  not  then  consider  war  as  existing,  and 
in  fact  Ellsworth,  Davie,  and  Murray  were  at  the  time  hard  at 
work  in  Paris.  In  May  following  the  President  was  instructed 
to  suspend  action  under  the  act  providing  for  military  organiza- 
tion, although  the  treaty  was  not  concluded  until  the  following 
September. 

This  legislation  shows  that  war  was  imminent ;  that  protection 
of  our  commerce  was  ordered,  but  distinctly  shows  that,  in  the 
opinion  of  the  legislature,  war  did  not  in  fact  exist. 

Wheaton  draws  a  distinction  between  two  classes  of  war, 
saying : 

"A  perfect  war  is  where  one  whole  nation  is  at  war  with  an- 
other nation,  and  all  the  members  of  both  nations  are  authorized 
to  commit  hostilities  against  all  the  members  of  the  other,  in 
every  case,  and  under  every  circumstance  permitted  by  the  gen- 
eral laws  of  war.  An  imperfect  war  is  limited  as  to  places,  per- 
sons, and  things  [to  which  the  editor  adds]  :  Such  were  the 
limited  hostilities  authorized  by  the  United  States  against 
France  in  1798."  (Lawrence's  Wheaton,  518.) 

There  was  no  declaration  of  war;  the  tribunals  of  each  coun- 
try were  open  to  the  other — an  impossibility  were  war  in  prog- 
ress; diplomatic  and  commercial  intercourse  were  admittedly 
suspended;  but  during  many  years  there  was  no  intercourse 
between  England  and  Mexico,  which  were  not  at  war;  there  was 
retaliation  and  reprisal,  but  such  retaliations  and  reprisals  have 
often  occurred  between  nations  at  peace;  there  was  a  near  ap- 
proach to  war,  but  at  no  time  was  one  of  the  nations  turned  into 
an  enemy  of  the  other  in  such  manner  that  every  citizen  of  one 
became  the  enemy  of  every  citizen  of  the  other;  finally,  there 
was  not  that  kind  of  war  which  abrogated  treaties  and  wiped 
out,  at  least  temporarily,  all  pending  rights  and  contracts,  in- 
dividual and  national. 

In  cases  like  this  "the  judicial  is  bound  to  follow  the  action 
of  the  political  department  of  the  Government,  and  is  concluded 
by  it"  (Phillips  v.  Payne,  92  U.  S.  R.  130)  ;  and  we  do  not  find 
an  act  of  Congress  or  of  the  Executive  between  the  years  1793 
and  1801  which  recognizes  an  existing  state  of  solemn  war, 
although  we  find  statutory  provisions  authorizing  a  certain 
course  "in  the  event  of  a  declaration  of  war,"  or  "whenever 
there  shall  be  declared  war,"  or  during  the  existing  "differ- 
ences." One  act  provides  for  the  increase  of  the  army  "in  case 
war  shall  break  out,"  while  another  restrains  this  increase  "un- 


372  NON-BELLIGERENT  SETTLEMENT. 

less  war  shall  break  out."     (1  Stat.  L.,  558,  577,  725,  750;  see 
also  acts  of  Feb.  10,  1800,  and  May  14,  1800.) 

We  have  already  referred  to  the  instructions  of  the  Executive, 
which  show  that  branch  of  the  Government  in  thorough  accord 
with  the  legislative  on  this  subject,  and  the  negotiations  of  our 
representatives  hereinafter  referred  to  were  marked  by  the  same 
views,  while  the  treaty  itself — a  treaty  of  amity  and  commerce 
of  limited  duration — is  strong  proof  that  what  were  called  "dif- 
ferences" did  not  amount  to  war.  We  are,  therefore,  of  the 
opinion  that  no  such  war  existed  as  operated  to  abrogate  treaties, 
to  suspend  private  rights,  or  to  authorize  indiscriminate  seizures 
and  condemnations;  that,  in  short,  there  was  no  public  general 
war,  but  limited  war  in  its  nature  similar  to  a  prolonged  series 
of  reprisals.  .  .  . 

NOTE. — Reprisals  are  a  method  of  self-help  resorted  to  by  a  state 
because  of  wrongs  suffered  either  by  the  state  itself  or  by  its  citizens 
at  the  hands  of  another  state.  The  term  is  loosely  employed,  but  it 
usually  describes  a  seizure  of  the  property  of  the  offending  state 
or  of  some  of  its  citizens.  While  it  is  a  method  of  self-defense  not  in- 
consistent with  the  maintenance  of  a  state  of  peace,  in  practice  it 
has  frequently  proved  a  step  toward  war.  As  it  is  a  measure  of 
retaliation,  it  should  not  be  out  of  proportion  to  the  injury  received, 
nor  should  it  be  employed  until  all  attempts  at  negotiation  have  failed 
or  until  it  is  apparent  that  any  such  attempt  would  be  futile.  Since 
it  is  employed  only  when  a  state  is  acting  under  a  strong  sense  of 
injury  it  is  a  dangerous  weapon  and  is  easy  of  abuse.  Nevertheless 
in  a  proper  case  it  is  recognized  as  lawful.  In  The  Schooner  En- 
deavor (1909),  44  Ct.  Cl.  242,  268,  the  Court  of  Claims  said: 

To  justify  reprisals  some  specific  wrong  must  be  committed 
and  the  seizure  must  be  made  by  way  of  compensation  in 
value  for  such  wrong.  In  other  words,  as  a  means  of  satis- 
faction without  resort  to  actual  war  letters  of  marque  are,  or 
were  formerly,  issued  by  the  state  to  certain  of  her  citizens 
authorizing  them  to  seize  and  take  the  person  and  property  of 
the  citizens  of  the  offending  state  wherever  found.  But  such 
reprisals  when  thus  made  will  not  become  complete,  justifying 
confiscation,  until  after  hope  of  satisfaction  has  ceased  or 
actual  war  has  begun.  . 

While  reprisals  are  acts  of  war  in  fact,  it  is  for  the  state 
affected  to  determine  for  itself  whether  the  relation  of  actual 
war  was  intended  by  them;  and  if  it  so  elects  to  regard  such 
acts  then  the  property  so  seized  becomes  liable  to  confiscation 
at  once;  otherwise  it  is  to  be  held  until  hope  of  satisfaction 
has  ceased. 

In  the  Great  War  several  countries  sought  to  protect  themselves  by 
means  of  reprisals.  As  soon  as  the  Allies  established  their  suprenv 


NOTE.  373 

acy  upon  the  sea,  German  shipping  sought  refuge  in  neutral  ports, 
and  as  German  destruction  of  neutral  vessels  continued,  and  as  the 
crews  of  German  vessels  committed  acts  which  endangered  the  safety 
of  shipping  in  the  ports  where  their  vessels  lay,  several  countries 
seized  the  German  vessels  anchored  in  their  harbors.  In  the  cases 
of  Italy  and  Portugal,  which  seized  the  vessels  only  a  short  time 
before  the  outbreak  of  war  with  Germany  and  after  the  policy  of 
war  had  probably  been  determined  upon,  the  seizure  did  not  pur- 
port to  be  an  act  of  reprisal.  Portugal  frankly  said  that  she  seized 
the  ships  because  she  needed  them.  In  the  cases  of  Brazil  and  Spain 
the  situation  was  different.  On  January  31,  1917  Germany  notified 
Brazil  that  its  policy  of  unrestricted  warfare  was  to  be  put  into 
operation  the  next  day.  On  February  13,  Brazil  replied  to  Germany 
that  if  diplomatic  relations  were  to  be  maintained,  Brazilian  ships 
must  not  be  attacked  on  any  pretext  whatever.  Nevertheless  in  the 
night  of  April  3  and  4,  the  Brazilian  merchant  vessel  Parana,  the 
property  of  the  Brazilian  Government,  was  sunk  with  loss  of  life. 
Consequently  on  April  11,  Brazil  broke  off  diplomatic  relations  with 
Germany.  On  May  22,  the  Brazilian  merchant  ship  Tijuca  was  sunk. 
The  loss  of  these  vessels  and  the  threatened  loss  of  others  was  so 
serious  a  blow  to  Brazilian  commerce  that  the  President  on  May  26 
asked  Congress  for  authority  to  take  over  and  utilize  the  German  ves- 
sels, forty-three  in  number,  then  in  Brazilian  waters.  In  his  message 
the  President  said: 

It  is  apparent  that  it  is  necessary  to  utilize  the  German 
merchant  ships  anchored  in  the  ports  of  Brazil,  excluding 
however  all  purpose  of  confiscation,  as  repugnant  to  the  spirit 
of  our  laws  and  to  the  general  sentiment  of  the  country.  The 
utilization  should  be  based  on  the  principles  of  the  Conven- 
tion signed  at  the  Hague  October  18,  1907  and  should  be  with- 
out compensation  until  we  can  determine  whether  the  ships 
are  private  property  which  even  in  case  of  war  should  be 
respected,  in  which  case  Brazil  will  respect  them,  or  whether 
they  belong  to  enterprises  which  are  connected  in  some  way 
with  the  Government. 

Documentos  Diplomaticos,  1914-1917,  57. 

The  requested  authority  was  granted  and  on  June  2  the  President 
expropriated  (requisita)  the  ships,  gave  them  a  Brazilian  registry 
and  Brazilian  names,  placed  them  under  the  Brazilian  flag  and 
handed  them  over  for  operation  to  the  Lloyd  Brasiliero,  a  corpora- 
tion then  owned  by  the  Brazilian  Government  and  used  as  the  Gov- 
ernment's agent  for  the  administration  of  the  Government's  merchant 
fleet.  In  reply  to  Germany's  protest  the  Brazilian  Minister  of  For- 
eign Affairs,  Nilo  Pec.anha,  said: 

The  measure  adopted  by  the  Government  of  the  Republic 
of  utilizing  the  German  ships  in  consequence  of  the  tor- 
pedoing of  its  merchant  fleet,  thus  assuring  immediately  and 
directly,  even  though  by  force,  satisfaction  for  the  losses 
which  have  been  caused  us,  was  a  legitimate  defensive  act, 


374  NON-BELLIGERENT  SETTLEMENT. 

/ 

founded  upon  Germany's  own  law  and  which  all  peoples 
practice  alike,  without  quitting  a  state  of  peace,  and  for  the 
precise  purpose  of  compelling  the  offending  nation  to  grant 
the  redress  which  is  imperatively  due  to  them. 

Documentos  Diplomatics,  1914-1917,  66.. 

When  an  attempt  was  afterward  made  to  libel  one  of  these  ships 
for  supplies  furnished,  the  Supreme  Court  of  Brazil,  on  August  8, 
1917,  in  the  case  of  Domschke  and  Company,  affirmed  the  decree  of 
the  District  Court  of  Bahia  and  held  that  the  ships  had  been  seized 
as  an  act  of  national  defense,  that  by  such  seizure  title  had  passed 
to  Brazil  and  that  as  state  property  they  were  not  subject  to  libel. 

On  August  21,  1918,  Spain  issued  a  statement  in  which  it  said  that 
as  more  than  thirty  per  cent  of  the  Spanish  merchant  marine  had 
been  sunk,  with  consequent  embarassment  to  Spanish  commerce,  the 
German  Government  would  be  notified  that  in  case  of  further  sink- 
ings German  vessels  then  lying  in  Spanish  ports  would  be  substituted 
therefor.  This  however  was  not  to  involve  confiscation,  but  would 
be  "only  a  temporary  solution  until  the  establishment  of  peace,  when 
Spanish  claims  also  will  be  liquidated."  Pursuant  to  this  announce- 
ment, about  ninety  German  vessels  were  seized.  As  nothing  was 
said  about  the  payment  of  indemnity,  the  seizure  may  be  regarded 
as  an  act  of  reprisal  for  the  losses  inflicted  on  the  Spanish  merchant 
fleet.  At  the  same  time  Spain  reiterated  her  purpose  to  maintain  a 
strict  neutrality. 

For  a  further  discussion  of  reprisals  see  Gushing,  Administrator 
v.  United  States  (1887),  22  Ct.  Cl.  1,  37;  Hooper,  Administrator  v. 
United  States  (1887),  22  Ct.  Cl.  408,  428,  456;  Cobb*tt,  Cases  and  Opin- 
ions, I,  347,  359;  Bonfils  (Fauchille),  sec.  975;  Hyde,  II,  172;  Moore, 
Digest,  VII,  119. 


SECTION  3.     EMBARGO. 
THE  BOEDES  LUST. 

HIGH  COURT  OF  ADMIRALTY  OF  ENGLAND.     1804. 
5  C.  Robinson,   233. 

[On  May  16,  1803,  the  government  of  Great  Britain  imposed 
an  embargo  on  all  Dutch  property  in  British  ports.  In  conse- 
qunnce,  the  Boedes  Lust,  a  vessel  belonging  to  residents  of  the 
Dutch  colony  of  Demerara,  was  seized.  The  next  month  war  was 
declared  between  England  and  Holland.  In  December,  1803, 
the  colony  of  Demerara  was  ceded  to  England.  The  original 
owners  now  seek  to  recover  the  vessel.] 


THE  BOEDES  LUST.  375 

SIR  WILLIAM  SCOTT  [LORD  STOWELL].  .  .  .  The  claim  is 
given  for  several  persons  as  inhabitants  of  Demerara,  not  set- 
tling there  during  the  time  of  British  possession,  nor  averring 
an  intention  of  returning  when  that  possession  ceased.  They 
are  therefore  to  be  treated  under  this  general  view  as  Dutch 
subjects,  unless  it  can  be  shown  that  there  are  any  other  circum- 
stances by  which  they  are  protected.  It  is  contended  that  there 
are  such  circumstances  and  that  they  are  these :  That  the  prop- 
erty was  taken  in  a  state  of  peace,  and  that  the  proprietors  are 
now  become  British  subjects,  and  consequently  that  this  prop- 
erty could  not  be  considered  as  the  property  of  an  enemy,  either 
at  the  time  of  capture  or  adjudication.  Now,  with  respect  to 
the  first  of  these  pleas,  it  must  be  admitted,  that  alone  would 
not  protect  them,  because  the  Court  has,  without  any  exception, 
condemned  all  other  property  of  Dutchmen  taken  before  the 
war — And  upon  what  ground? — That  the  declaration  had  a 
retroactive  effect,  applying  to  all  property  previously  detained, 
and  rendering  it  liable  to  be  considered  as  the  property  of 
enemies  taken  in  time  of  war.  This  property  was  seized  pro- 
visionally, an  act  hostile  enough  in  the  mere  execution,  but 
equivocal  as  to  the  effect,  and  liable  to  be  varied  by  subsequent 
events,  and  by  the  conduct  of  the  Government  of  Holland.  If 
that  conduct  had  been  such  as  to  reestablish  the  relations  of 
peace,  then  the  seizure,  although  made  with  the  character  of  a 
hostile  seizure,  would  have-  proved  in  the  event  a  mere  embargo, 
or  temporary  sequestration.  The  property  would  have  been 
restored,  as  it  is  usual,  at  the  conclusion  of  embargoes ;  a  process 
often  resorted  to  in  the  practice  of  nations,  for  various  causes 
not  immediately  connected  with  any  expectations  of  hostility. 
During  the  period  that  this  embargo  lasted,  it  is  said,  that  the 
Court  might  have  restored,  but  I  cannot  assent  to  that  observa- 
tion; because,  on  due  notice  of  embargoes,  this  Court  is  bound 
to  enforce  them.  It  would  be  a  high  misprision  in  this  Court,  to 
break  them,  by  re-delivery  of  possession  to  the  foreign  owner  of 
that  property,  which  the  Crown  had  directed  to  be  seized  and 
detained  for  farther  orders.  The  Court  acting  in  pursuance  of 
the  general  orders  of  the  State,  and  bound  by  those  general 
orders,  would  be  guilty  of  no  denial  of  justice,  in  refusing  to 
decree  restitution  in  such  a  case,  for  it  has  not  the  power  to 
restore.  Its  functions  are  suspended  by  a  binding  authority, 
and  if  any  injustice  is  done  that  is  an  account  to  be  settled  be- 


376  NONBELLIGERENT  SETTLEMENT. 

tween  the  States.  The  Court  has  no  responsibility,  for  it  has 
no  ability  to  act. 

This  was  the  state  of  the  first  seizure.  It  was  at  first  equivo- 
cal; and  if  the  matter  in  dispute  had  terminated  in  reconcilia- 
tion, the  seizure  would  have  been  converted  into  a  mere  civil 
embargo,  so  terminated.  That  would  have  been  the  retroactive 
effect  of  that  course  of  circumstances.  On  the  contrary,  if  the 
transactions  end  in  hostility,  the  retroactive  effect  is  directly  the 
other  way.  It  impresses  the  direct  hostile  character  upon  the 
original  seizure.  It  is  declared  to  be  no  embargo,  it  is  no  longer 
an  equivocal  act,  subject  to  two  interpretations;  there  is  a  dec- 
laration of  the  animus,  by  which  it  was  done,  that  it  was  done 
hostili  animo,  and  is  to  be  considered  as  an-  hostile  measure  ab 
initio.  The  property  taken  is  liable  to  be  used  as  the  property 
of  persons,  trespassers  ab  initio,  and  guilty  of  injuries,  which 
they  have  refused  to  redeem  by  any  amicable  alteration  of  their 
measures.  This  is  the  necessary  course,  if  no  particular  compact 
intervenes  for  the  restitution  of  such  property  taken  before  a 
formal  declaration  of  hostilities.  No  such  convention  is  set  up 
on  either  side,  and  the  State,  by  directing  proceedings  against 
this  property  for  condemnation,  has  signified  a  contrary  inten- 
tion. Accordingly  the  general  mass  of  Dutch  property  has  been 
condemned  on  this  retroactive  effect;  and  this  property  stands 
upon  the  same  footing  as  to  the  seizure,  for  it  was  seized  at  the 
same  time,  and  with  the  same  intent.  .  .  . 

The  Settlement  [Demerara]  has  since  surrendered  to  the 
British  arms,  and  the  parties  are  become  British  subjects;  and 
this,  it  is  said,  takes  off  the  hostile  effect,  although  it  might  have 
attached.  This  argument  to  be  effective,  must  be  put  in  one  of 
these  two  ways,  either  that  the  condemnation  pronounced  upon 
Dutch  property  went  upon  the  ground  that,  though  seized  in 
time  of  neutrality,  it  could  not  be  restored  only,  because  the 
parties  were  not  now  in  a  condition  to  receive  it;  or  else,  that 
though  seized  at  a  time,  that  may  to  some  effects  be  considered 
as  time  of  war,  yet  the  subjects,  having  become  friends,  are  en- 
titled to  restitution.  This  latter  position  cannot  be  maintained 
for  a  moment.  It  is  contradicted  by  all  experience  and  practice, 
even  in  the  case  of  those  who  had  an  original  British  character. 

.  .  Where  property  is  taken  in  a  state  of  hostility,  the  uni- 
versal practice  has  ever  been  to  hold  it  subject  to  condemnation, 
although  the  claimants  may  have  become  friends  and  subjects 
prior  to  the  adjudication.  The  plea  of  having  again  become 

I 


NOTE.  377 

British  subjects,  therefore,  will  not  relieve  them,  and  the  other 
ground  must  be  resorted  to.  That  is  equally  untenable  in  point 
of  fact ;  for  the  condemnation  of  the  other  Dutch  property  pro- 
ceeded on  no  such  ground  as  the  mere  incapacity  of  the  pro- 
prietors to  receive  restitution.  It  proceeded  on  the  other  ground, 
which  I  have  before  mentioned,  the  retroactive  effect  of  the 
declaration,  which  rendered  their  property  liable  to  be  treated 
as  the  property  of  enemies  at  the  time  of  seizure.  .  .  . 

NOTE. — The  laying  of  an  embargo  is  an  act  of  state,  The  Theresa 
Bonita  (1802),  4  C.  Robinson,  236.  The  term  is  applied  to  two  meas- 
ures which  from  a  juristic  standpoint  are  of  an  entirely  different 
character.  The  first  is  an  embargo  laid  by  a  country  upon  its  own 
ships  either  for  the  purpose  of  protection  or  for  the  enforcement  of  some 
measure  of  the  country's  policy.  This  is  purely  a  municipal  regula- 
tion and  while  it  may  affect  other  countries  it  is  not  a  measure 
to  which  they  have  a  right  to  object.  See  Phillimore,  III,  44.  The 
American  Embargo  Acts  of  1807  and  1809  were  measures  of  this 
kind.  For  a  full  citation  of  cases  arising  under  them  see  Moore, 
Digest,  VII,  142.  An  embargo  may  also  be  laid  with  hostile  intent 
upon  the  property  of  citizens  of  other  countries,  either  for  the  pur- 
pose of  compelling  other  countries  to  adopt  a  desired  line  of  action, 
in  which  case  it  is  in  essence  only  a  form  of  reprisal  or  retaliation, 
or  because  war  is  anticipated  or  has  actually  begun.  See  The  Ger- 
truyda  (1799),  2  C.  Robinson,  211,  219;  Cobbett,  Cases  and  Opinions, 
I,  351,  359;  Bonfils  (Fauchille),  sec.  985;  Hyde,  II,  182. 


CHAPTER  XL 

THE  BELLIGERENT  RELATIONS  OF  STATES. 

SECTION  1.     THE  BEGINNING  OF  WAR. 

THE  PRIZE  CASES. 

THE  BRIG  AMY  WARWICK.     THE   SCHOONER  CREN- 

SHAW.    THE  BARQUE  HIAWATHA.    THE 

SCHOONER  BRILLIANTE. 

StJPKEME   COUET   OF   THE  UNITED   STATES.      1863. 

2  Black,  635. 

[The  four  vessels  concerned  in  these  cases  had  been  captured 
by  public  vessels  of  the  United  States  for  attempting  to  violate 
the  blockade  of  the  so-called  Confederate  States  which  had  been 
established  by  President  Lincoln's  proclamations  of  April  19  and 
April  27,  1861.  They  were  libelled  on  behalf  of  the  United 
States  and  in  each  case  the  District  Court  pronounced  a  decree 
of  condemnation  from  which  the  several  owners  appealed.  Be- 
sides the  questions  peculiar  to  each  case,  the  court  was  obliged 
to  consider  certain  fundamental  questions  as  to  the  validity  of 
the  blockade.] 

MR.  JUSTICE  GRIER.  There  are  certain  propositions  of  law 
which  must  necessarily  affect  the  ultimate  decision  of  these  cases, 
and  many  others,  which  it  will  be  proper  to  discuss  and  decide 
before  we  notice  the  special  facts  peculiar  to  each. 

They  are,  1st.  Had  the  President  a  right  to  institute  a  block- 
ade of  ports  in  possession  of  persons  in  armed  rebellion  against 
the  government,  on  the  principles  of  international  law,  as  known 
and  acknowledged  among  civilized  States? 

2d.  Was  the  property  of  persons  domiciled  or  residing  within 
those  States  a  proper  subject  of  capture  on  the  sea  as  "enemies' 
property ' '  ? 

378 


THE  PRIZE  CASES.  379 

I.  Neutrals  have  a  right  to  challenge  the  existence  of  a  block- 
ade de  facto,  and  also  the  authority  of  the  party  exercising  the 
right  to  institute  it.  They  have  a  right  to  enter  the  ports  of  a 
friendly  nation  for  the  purpose  of  trade  and  commerce,  but  are 
bound  to  recognize  the  rights  of  a  belligerent  engaged  in  actual 
war,  to  use  this  mode  of  coercion,  for  the  purpose  of  subduing 
the  enemy. 

That  a  blockade  de  facto  actually  existed,  and  was  formally 
declared  and  notified  by  the  President  on  the  27th  and  30th  of 
April,  1861,  is  an  admitted  fact  in  these  cases. 

That  the  President,  as  the  Executive  Chief  of  the  Government 
and  Commander-in-Chief  of  the  Army  and  Navy,  was  the  proper 
person  to  make  such  notification,  has  not  been,  and  cannot  be 
disputed. 

The  right  of  prize  and  capture  has  its  origin  in  the  jus  belli, 
and  is  governed  and  adjudged  under  the  law  of  nations.  To 
legitimate  the  capture  of  a  neutral  vessel  or  property  on  the  high 
seas,  a  war  must  exist  de  facto,  and  the  neutral  must  have  a 
knowledge  or  notice  of  the  intention  of  one  of  the  parties  bellig- 
erent to  use  this  mode  of  coercion  against  a  port,  city,  or  terri- 
tory, in  possession  of  the  other. 

Let  us  inquire  whether,  at  the  time  this  blockade  was  insti- 
tuted, a  state  of  war  existed  which  would  justify  a  resort  to  these 
means  of  subduing  the  hostile  force. 

War  has  been  well  defined  to  be, ' '  That  state  in  which  a  nation 
prosecutes  its  right  by  force." 

The  parties  belligerent  in  a  public  war  are  independent  na- 
tions. But  it  is  not  necessary  to  constitute  war,  that  both  parties 
should  be  acknowledged  as  independent  nations  or  sovereign 
States.  A  war  may  exist  where  one  of  the  belligerents  claims 
sovereign  rights  as  against  the  other. 

Insurrection  against  a  government  may  or  may  not  culminate 
in  an  organized  rebellion,  but  a  civil  war  always  begins  by  in- 
surrection against  the  lawful  authority  of  the  Government.  A 
civil  war  is  never  solemnly  declared ;  it  becomes  such  by  its  acci- 
dents,— the  number,  power,  and  organization  of  the  persons  who 
originate  and  carry  it  on.  "When  the  party  in  rebellion  occupy 
and  hold  in  a  hostile  manner  a  certain  portion  of  territory ;  have 
declared  their  independence ;  have  cast  off  their  allegiance ;  have 
organized  armies;  have  commenced  hostilities  against  their  for- 
mer sovereign,  the  world  acknowledges  them  as  belligerents,  and 
the  contest  a  war.  They  claim  to  be  in  arms  to  establish  their 


380         BELLIGERENT  RELATIONS  OF  STATES. 

liberty  and  independence,  in  order  to  become  a  sovereign  State, 
while  the  sovereign  party  treats  them  as  insurgents  and  rebels 
who  owe  allegiance,  and  who  should  be  punished  with  death  for 
their  treason. 

The  laws  of  war,  as  established  among  nations,  have  their  foun- 
dation in  reason,  and  all  tend  to  mitigate  the  cruelties  and  misery 
produced  by  the  scourge  of  war.  Hence  the  parties  to  a  civil 
war  usually  concede  to  each  other  belligerent  rights.  They  ex- 
change prisoners,  and  adopt  the  other  courtesies  and  rules  com- 
mon to  public  or  national  wars. 

"A  civil  war,"  says  Vattel,  "breaks  the  bands  of  society  and 
government,  or  at  least  suspends  their  force  and  effect;  it  pro- 
duces in  the  nation  two  independent  parties,  who  consider  each 
other  as  enemies,  and  acnowledge  no  common  judge.  Those  two 
parties,  therefore,  must  necessarily  be  considered  as  constituting, 
at  least  for  a  time,  two  separate  bodies,  two  distinct  societies. 
Having  no  common  superior  to  judge  between  them,  they  stand 
in  precisely  the  same  predicament  as  two  nations  who  engage  in 
a  contest  and  have  recourse  to  arms. 

"This  being  the  case,  it  is  very  evident  that  the  common  laws 
of  war — those  maxims  of  humanity,  moderation,  and  honor — 
ought  to  be  observed  by  both  parties  in  every  civil  war.  Should 
the  sovereign  conceive  he  has  a  right  to  hang  up  his  prisoners 
as  rebels,  the  opposite  party  will  make  reprisals,  &c.,  &c. ;  the  war 
will  become  cruel,  horrible,  and  every  day  more  destructive  to  the 
nation." 

As  a  civil  war  is  never  publicly  proclaimed,  eo  nomine,  against 
insurgents,  its  actual  existence  is  a  fact  in  our  domestic  history 
which  the  Court  is  bound  to  notice  and  know. 

The  true  test  of  its  existence,  as  found  in  the  writings  of  the 
sages  of  the  common  law,  may  be  thus  summarily  stated: 
"When  the  regular  course  of  justice  is  interrupted  by  revolt, 
rebellion,  or  insurrection,  so  that  the  Courts  of  Justice  cannot  be 
kept  open,  civil  war  exists  and  hostilities  may  be  prosecuted  on 
the  same  footing  as  if  those  opposing  the  Government  were  for- 
eign enemies  invading  the  land." 

By  the  Constitution,  Congress  alone  has  the  power  to  declare  ' 
a  national  or  foreign  war.  It  cannot  declare  war  against  a  State, 
or  any  number  of  States,  by  virtue  of  any  clause  in  the  Consti- 
tution. The  Constitution  confers  on  the  President  the  whole 
Executive  power.  He  is  bound  to  take  care  that  the  laws  be 
faithfully  executed.  He  is  Commander-in-Chief  of  the  Army  and 


THE  PRIZE  CASES.  381 

Navy  of  the  United  States,  and  of  the  militia  of  the  several  States 
when  called  into  the  .actual  service  of  the  United  States.  He  has 
no  power  to  initiate  or  declare  a  war  either  against  a  foreign 
nation  or  a  domestic  State.  But  by  the  Acts  of  Congress  of  Feb- 
ruary 28,  1795,  and  3d  of  March,  1807,  he  is  authorized  to  call 
out  the  militia  and  use  the  military  and  naval  forces  of  the 
United  States  in  case  of  invasion  by  foreign  nations,  and  to 
suppress  insurrection  against  the  government  of  a  State  or  of 
the  United  States. 

If  a  war  be  made  by  invasion  of  a  foreign  nation,  the  Presi- 
dent is  not  only  authorized  but  bound  to  resist  force  by  force. 
He  does  not  initiate  the  war,  but  is  bound  to  accept  the  challenge 
without  waiting  for  any  special  legislative  authority.  And 
whether  the  hostile  party  be  a  foreign  invader,  or  States  organ- 
ized in  rebellion,  it  is  none  the  less  a  war,  although  the  declara- 
tion of  it  be  " unilateral."  Lord  Stowell  (1  Dodson,  247)  ob- 
serves, "It  is  not  the  less  a  war  on  that  account,  for  war  may 
exist  without  a  declaration  on  either  side.  It  is  so  laid  down  by 
the  best  writers  on  the  law  of  nations.  A  declaration  of  war 
by  one  country  only,  is  not  a  mere  challenge  to  be  accepted  or 
refused  at  pleasure  by  the  other." 

The  battles  of  Palo  Alto  and  Resaca  de  la  Palma  had  been 
fought  before  the  passage  of  the  Act  of  Congress  of  May  13,  1846, 
which  recognized  "a  state  of  war  as  existing  by  the  act  of  the 
Republic  of  Mexico. ' '  This  act  not  only  provided  for  the  future 
prosecution  of  the  war,  but  was  itself  a  vindication  and  ratifica- 
tion of  the  Act  of  the  President  in  accepting  the  challenge  with- 
out a  previous  formal  declaration  of  war  by  Congress. 

This  greatest  of  civil  wars  was  not  gradually  developed  by 
popular  commotion,  tumultuous  assemblies,  or  local  unorganized 
insurrections.  However  long  may  have  been  its  previous  con- 
ception, it  nevertheless  sprung  forth  suddenly  from  the  parent 
brain,  a  Minerva  in  the  full  panoply  of  war.  The  President  was 
bound  to  meet  it  in  the  shape  it  presented  itself,  without  waiting 
for  Congress  to  baptize  it  with  a  name ;  and  no  name  given  to  it 
by  him  or  them  could  change  the  fact. 

It  is  not  the  less  a  civil  war,  with  belligerent  parties  in  hostile 
array,  because  it  may  be  called  an  "insurrection"  by  one  side, 
and  the  insurgents  be  considered  as  rebels  or  traitors.  It  is  not 
necessary  that  the  independence  of  the  revolted  province  or 
State  be  acknowledged  in  order  to  constitute  it  a  party  belliger- 
ent in  a  war  according  to  the  law  of  nations.  Foreign  nations 


382         BELLIGERENT  RELATIONS  OF  STATES. 

acknowledge  it  as  war  by  a  declaration  of  neutrality.  The  con- 
dition of  neutrality  cannot  exist  unless  there  be  two  belligerent 
parties.  In  the  case  of  the  Santissima  Trinidad  (7  Wheaton, 
337),  this  court  say:  "The  Government  of  the  United  States 
has  recognized  the  existence  of  a  civil  war  between  Spain  and  her 
colonies,  and  has  avowed  her  determination  to  remain  neutral 
between  the  parties.  Each  party  is  therefore  deemed  by  us  a 
belligerent  nation,  having,  so  far  as  concerns  us,  the  sovereign 
rights  of  war."  (See  also  3  Binn.,  252.) 

As  soon  as  the  news  of  the  attack  on  Fort  Sumter,  and  the 
organization  of  a  government  by  the  seceding  States,  assuming  to 
act  as  belligerents,  could  become  known  in  Europe,  to  wit,  on 
the  13th  of  May,  1861,  the  Queen  of  England  issued  her  procla- 
mation of  neutrality,  ' '  recognizing  hostilities  as  existing  between 
the  Government  of  the  United  States  of  America  and  certain 
States  styling  themselves  the  Confederate  States  of  America." 
This  was  immediately  followed  by  similar  declarations  or  silent 
acquiescence  by  other  nations. 

After  such  an  official  recognition  by  the  sovereign,  a  citizen 
of  a  foreign  State  is  estopped  to  deny  the  existence  of  a  war  with 
all  its  consequences  as  regards  neutrals.  They  cannot  ask  a 
Court  to  affect  a  technical  ignorance  of  the  existence  of  a  war, 
which  all  the  world  acknowledges  to  be  the  greatest  civil  war 
known  in  the  history  of  the  human  race,  and  thus  cripple  the 
arm  of  the  Government  and  paralyze  its  power  by  subtle  defini- 
tions and  ingenious  sophisms. 

The  law  of  nations  is  also  called  the  law  of  nature ;  it  is  founded 
on  the  common  consent  as  well  as  the  common  sense  of  the  world. 
It  contains  no  such  anomalous  doctrine  as  that  which  this  Court 
are  now  for  the  first  time  desired  to  pronounce,  to  wit :  That  in- 
surgents who  have  risen  in  rebellion  against  their  sovereign,  ex- 
pelled her  courts,  established  a  revolutionary  government,  organ- 
ized armies,  and  commenced  hostilities,  are  not  enemies  because 
they  are  traitors,  and  a  war  levied  on  the  government  by  traitors, 
in  order  to  dismember  and  destroy  it,  is  not  a  war  because  it  is 
an  ''insurrection." 

Whether  the  President,  in  fulfilling  his  duties  as  Commander- 
in-chief  in  suppressing  an  insurrection,  has  met  with  such  armed 
hostile  resistance,  and  a  civil  war  of  such  alarming  proportions, 
as  will  compel  him  to  accord  to  them  the  character  of  belligerents, 
is  a^  question  to  be  decided  by  him,  and  this  Court  must  be  gov- 
erned by  the  decisions  and  acts  of  the  political  department  of 


THE  PRIZE  CASES.  383 

the  Government  to  which  this  power  was  intrusted.  "He  must 
determine  what  degree  of  force  the  crisis  demands."  The  proc- 
lamation of  blockade  is  itself  official  and  conclusive  evidence  to 
the  Court  that  a  state  of  war  existed  which  demanded  and  au- 
thorized a  recourse  to  such  a  measure,  under  the  circumstances 
peculiar  to  the  case. 

The  correspondence  of  Lord  Lyons  with  the  Secretary  of  State 
a.dmits  the  fact  and  concludes  the  question. 

If  it  were  necessary  to  the  technical  existence  of  a  war,  that  it 
should  have  a  legislative  sanction,  we  find  it  in  almost  every  act 
passed  at  the  extraordinary  session  of  the  Legislature  of  1861, 
which  was  wholly  employed  in  enacting  laws  to  enable  the  Gov- 
ernment to  prosecute  the  war  writh  vigor  and  efficiency.  And 
finally,  in  1861,  we  find  Congress  "ex  majore  c'autela"  and  in  an- 
ticipation of  such  astute  objections,  passing  an  act  "approving, 
legalizing,  and  making  valid  all  the  acts,  proclamations,  and 
orders  of  the  President,  &c.,  as  if  they  had  been  issued  and  done 
under  the  previous  express  authority  and  direction  of  the  Con- 
gress of  the  United  States." 

Without  admitting  that  such  an  act  was  necessary  under  the 
circumstances,  it  is  plain  that  if  the  President  had  in  any  man- 
ner assumed  powers  which  it  was  necessary  should  have  the  au- 
thority or  sanction  of  Congress,  that  on  the  well  known  principle 
of  law,  " omnis  rati.habitio  retrotrahitur  et  mandato  equipar- 
atur,"  this  ratification  has  operated  to  perfectly  cure  the  defect. 
In  the  case  of  Brown  vs.  United  States  (8  Cr.,  131,  132,  133), 
Mr.  Justice  Story  treats  of  this  subject,  and  cites  numerous  au- 
thorities to  which  we  may  refer  to  prove  this  position,  and  con- 
cludes, "I  am  perfectly  satisfied  that  no  subject  can  commence 
hostilities  or  capture  property  of  an  enemy,  when  the  sovereign 
has  prohibited  it.  But  suppose  he  did,  I  would  ask  if  the  sover- 
eign may  not  ratify  his  proceedings,  and  thus  by  a  retroactive 
operation  give  validity  to  them?" 

Although  Mr.  Justice  Story  dissented  from  the  majority  of  the 
Court  on  the  whole  case,  the  doctrine  stated  by  him  on  this  point 
is  correct  and  fully  substantiated  by  authority. 

The  objection  made  to  this  act  of  ratification,  that  it  is  ex  post 
facto,  and  therefore  unconstitutional  and  void,  might  possibly 
have  some  weight  on  the  trial  of  an  indictment  in  a  criminal 
Court.  But  precedents  from  that  source  cannot  be  received  as 
authoritative  in  a  tribunal  administering  public  and  interna- 
tional law. 


384         BELLIGERENT  RELATIONS  OF  STATES. 

On  this  first  question  therefore  we  are  of  the  opinion  that  the 
President  had  a  right,  jure  belli,  to  institute  a  blockade  of  ports 
in  possession  of  the  States  in  rebellion,  which  neutrals  are  bound 
to  regard.  .  .  . 


UNITED   STATES   OF   AMERICA  v.   PELLY   AND 
ANOTHER. 

QUEEN'S  BENCH  DIVISION  OF  THE  HIGH  COURT  OF  JUSTICE  OF  ENGLAND. 

1899. 
4  Commercial  Cases,  100- 

[On  April  21,  1898,  the  plaintiff,  through  Lieutenant  Sims, 
Acting  Naval  Attache  of  the  American  Embassy  in  London, 
contracted  for  the  purchase  of  two  steamers  belonging  to  a  com- 
pany of  which  the  defendants  were  managers.  The  contract  pro- 
vided that  the  vendors  should  deliver  the  steamers  in  New  York 
"as  soon  as  possible,"  and  that  a  deposit  of  ten  per  cent  of  the 
purchase  price  should  be  paid  on  the  signing  of  the  contract. 
It  was  also  agreed  (clause  7)  that  "if  from  blockade  or  any 
other  cause  arising  from  the  United  States  of  America  becoming 
belligerents  and  preventing  delivery  of  either  of  the  said  steam- 
ers this  contract  is  to  be  null  and  void,  but  the  vendor  is  to  re- 
tain the  deposit  as  and  for  liquidated  damages."  On  April  21, 
the  American  fleet  sailed  from  Key  West  and  on  April  22  a 
Spanish  ship,  the  Buena  Ventura,  was  captured.  News  of  this 
capture  was  published  in  the  London  evening  papers  of  April 
22  and  in  The  Times  of  April  23.  On  April  26,  Congress 
adopted  a  resolution  declaring  that  war  existed  and  had  existed 
since  April  21  between  the  United  States  and  Spain.  On  the 
same  day,  April  26,  the  British  proclamation  of  neutrality  dated 
April  23  was  issued.  On  April  23  the  defendants  notified  the 
American  Embassy  that  in  consequences  of  the  outbreak  of  war 
they  were  prevented  from  delivering  the  steamers.  Lieutenant 
Sims  replied  the  same  day,  "The  fact  of  a  state  of  war  existing 
between  the  United  States  and  Spain  has  no  bearing  on  the  case 
so  far  as  you  are  concerned.  No  man  in  England  has,  or  will 
have,  any  official  knowledge  of  the  state  of  affairs  until  his  Gov- 
ernment notifies  him  of  the  fact  by  a  proclamation  of  neutral- 
ity." The  steamers  not  having  been  delivered,  this  action  was 


UNITED  STATES  OF  AMERICA  v.  PELLY.        385 

brought  to  recover  the  deposit  of  £5,300.  The  defendants  relied 
upon  the  British  Foreign  Enlistment  Act,  1870  (33  and  34  Viet. 
c.  90)  which  provides:  "S.  8.  If  any  person  within  Her  Maj- 
esty's dominions,  without  the  license  of  Her  Majesty,  does  any  of 
the  following  acts;  that  is  to  say  ...  (4)  Despatches  or 
causes  or  allows  to  be  despatched,  any  ship  with  intent  or  knowl- 
edge, or  having  reasonable  cause  to  believe  that  the  same  shall  or 
will  be  employed  in  the  military  or  naval  service  of  any  foreign 
state  at  war  with  any  friendly  state:  Such  person  shall  be 
deemed  to  have  committed  an  offence  against  this  Act."] 

BIGHAM,  J.  .  .  .  The  defendants  were  bound  to  do  their 
best  to  get  the  ships  despatched  "as  soon  as  possible,"  and  one 
reason  for  that  was,  as  the  United  States  knew,  that  it  was  desir- 
able to  get  the  ships  away  before  the  Foreign  Enlistment  Act 
operated  to  interfere  with  their  departure.  It  has  been  sug- 
gested that  the  defendants  from  the  very  first  intended  to  defeat 
the  object  of  the  contract  and  so  make  sure  of  retaining  the  de- 
posit and  in  that  way  realize  a  profit  without  giving  any  con- 
sideration for  it.  I  do  not  think  that  there  is  the  least  ground 
for  making  that  suggestion.  The  evidence  satisfies  me  that  the 
defendants  did  their  best  on  April  22  to  carry  out  the  contract 
all  through  the  day  and  I  am  satisfied  that  by  the  morning  of 
April  23 — that  is  to  say,  before  the  defendants  had  time  to  get 
the  ships  afloat  on  their  voyage  to  New  York — they  had  ascer- 
tained, as  the  fact  was,  that  a  state  of  war  existed.  I  will  state 
why  it  is  a  fact  that  a  state  of  war  then  existed.  An  act  of  hos- 
tility had  been  committed  on  April  22  by  American  men-of-war 
against  Spanish  traders,  or,  at  all  events,  against  one  Spanish 
trader,  which  act,  in  my  opinion,  was  only  consistent  with  the 
existence  of  a  state  of  war.  Further,  on  April  22  the  American 
President  issued  a  proclamation  in  which  he  declared  a  general 
blockade  of  Cuba.  A  few  days  later  the  Congress  passed  a  res- 
olution authorizing  a  formal  state  of  war,  but,  in  so  doing,  re- 
corded, what  was  undoubtedly  the  fact,  that  a  state  of  war  had 
existed  from  some  days  previously.  It  is  therefore  true  to  say 
that  a  state  of  war  existed  on  April  23,  and  I  am  inclined  to 
think  that  it  existed  also  on  April  22  and  21,  but  it  is  not  neces- 
sary to  decide  that.  On  April  23  the  defendants  realized  the 
actual  state  of  things  and  communicated  with  Lieutenant  Sims. 
He  being,  very  probably,  anxious  to  do  all  he  could  to  get  the 
27  contract  performed,  gave  his  view,  insisting,  wrongly,  as  I  think, 


386         BELLIGERENT  RELATIONS  OF  STATES. 

that  there  could  be  no  state  of  war  affecting  the  defendants  un- 
less and  until  war  was  formally  recognized  by  our  Government. 
.  .  .  In  these  circumstances  the  question  is  whether  the  de- 
fendants were  prevented,  within  the  meaning  of  clause  7  of  the 
contract,  from  delivering  the  ships.  [His  Lordship  read  S.  8 
of  the  Foreign  Enlistment  Act,  1870.]  In  my  opinion  if  the 
defendants  had  proceeded  with  the  despatch  of  the  vessels  on  or 
after  April  23  they  would  have  violated  that  section  and  have 
brought  themselves  within  the  Act.  It  is  sufficient  to  say  that, 
if  a  man  finds  himself  doing  some  act  which  is  contrary  to  law, 
he  is  ''prevented"  from  doing  that  act.  Clause  7  of  the  con- 
tract does  not  merely  mean  physical  prevention,  but  that,  if  it  is 
improper  or  wrong  for  the  defendants  to  deliver  the  ships,  the 
defendants  are  not  to  do  so,  but  are  in  that  event  to  be  com- 
pensated for  their  trouble  and  expenses  by  retaining  the  de- 
posit. For  these  reasons  there  will  be  judgment  for  the  defend- 
ants, with  costs.  .  .  . 

NOTE. — From  early  times  it  was  customary  to  institute  wars  by  a 
formal  declaration.  In  the  eighteenth  century  that  custom  fell  into 
disuse.  See  Maurice,  Hostilities  without  Declaration  of  War,  for 
the  practice  from  1700  to  1870.  The  Franco-Prussian  War  was  begun 
by  a  formal  declaration  and  that  has  been  the  general  custom  since, 
and  is  enjoined  by  The  Hague  Conventions.  But  since  war  is  a  status, 
its  existence  does  not  depend  upon  a  formal  declaration,  but  only 
upon  the  fact.  In  The  Marie  Magdalena  (1779),  Hay  and  Marriott, 
247,  Sir  John  Marriott  said: 

Where  is  the  difference,  whether  a  war  is  proclaimed  by  a 
herald  at  the  Royal  Exchange,  with  his  trumpets,  and  on  the 
Pont  Neuf  at  Paris,  and  by  reading  and  affixing  a  printed 
paper  on  public  buildings;  or  whether  war  is  announced  by 
royal  ships,  and  whole  fleets,  at  the  mouths  of  cannon? 

War  may  begin  therefore  with  the  first  act  of  hostility,  The  Teutonia 
(1872)  8  Moore,  P.  C.  (N.  S.)  411.  In  April,  1778,  France  despatched 
an  expedition  under  D'Estaing  to  the  aid  of  the  American  colonists. 
It  arrived  in  the  Delaware  on  July  7,  but  France  did  not  declare 
war  until  July  28.  The  Russo-Japanese  War  was  begun  without 
a  formal  declaration.  In  the  case  of  The  Argun  (1904),  Takahashi, 
573,  the  claimant  argued  that  the  vessel  should  be  restored  because 
captured  before  the  declaration  of  war.  To  this  the  Prize  Court  of 
Sasebo  replied: 

When  diplomatic  negotiations  concerning  the  Manchurian 
and  Korean  questions  were  going  on  between  Japan  and 
Russia,  the  latter  country  unreasonably  failed  to  give  her 
answer  to  Japan.  On  the  other  hand,  she  showed  great  ac- 


NOTE.  387 

tivity  in  her  army  and  navy,  sent  her  land  forces  to  Man- 
churia and  Korea,  collected  her  war  vessels  at  Port  Arthur, 
and  thus  showed  her  determination  to  fight.  This  fact  was 
clear.  Whereupon  Japan,  on  the  5th  day  of  the  2nd  month 
of  the  37th  year  of  Meiji,  notified  Russia  that  all  diplomatic 
relations  were  at  an  end.  At  the  same  time  Japan  made 
preparations  for  action  and  the  next  day,  the  6th  at  7  A.  M.f 
her  fleet  left  Sasebo  with  the  object  of  attacking  the  Russian 
fleet.  Inferring  from  the  conduct  of  the  navies  of  both  coun- 
tries and  from  the  state  of  things  at  the  time,  that  hostile 
operations  were  publicly  opened  prior  to  the  capture  of  the 
steamship  now  under  consideration;  and  as  it  is  thus  clear 
that  a  state  of  war  had  begun  before  the  time  of  the  ship's 
capture,  there  is  no  need  to  discuss  whether  it  was  made 
before  the  declaration  of  war  or  not. 

For  an  account  of  the  controversy  growing  out  of  Japan's  attack  on 
Russia  before  the  declaration  of  war,  see  Pitt  Cobbett,  Cases  and 
Opinions,  II,  1;  Int.  Law  Sit.  1910,  58;  Asakawa,  The  Russo-Japanese 
Conflict;  Hershey,  The  International  Law  and  Diplomacy  of  the  Rus- 
so-Japanese War;  Lawrence,  War  and  Neutrality  in  the  Far  East; 
Ariga,  La  Guerre  Russo-Japonaise;  Rey,  La  Guerre  Russo-Japonaise. 
The  Russian  side  of  the  controversy  is  stated  by  the  eminent  Russian 
jurist,  F.  de  Martens,  in  Revue  Generate  de  Droit  International  Pub- 
lic, XI,  148.  His  view  is  that  a  formal  declaration  of  war  is  not  nec- 
essary provided  the  relations  between  the  two  countries  are  such 
that  war  is  not  an  improbable  eventuality. 

In  the  Great  War  of  1914,  there  was  a  formal  declaration  in  each 
instance.  See  Phillipson,  International  Law  and  the  Great  War,  ch.  iii. 
Although  France  did  not  declare  war  on  Turkey  until  November  5, 
1914,  the  French  Prize  Court  held  that  a  state  of  war  existed  de  facto 
from  October  29,  1914  when  the  Turks  bombarded  Odessa  and  two 
French  citizens  on  board  a  French  ship  were  killed,  The  Mahrousseh 
(1915),  Decisions  du  Conseil  des  Prises,  I,  94.  On  the  war  between 
the  United  States  and  Spain,  see  The  Pedro  (1899),  175  U.  S.  354. 
The  American  Civil  War  began  in  each  of  the  seceding  States  on  the 
day  on  which  President  Lincoln's  proclamation  of  blockade  took  ef- 
fect therein,  The  Protector  (1872),  12  Wallace,  700.  A  declaration 
of  war  may  be  preceded  by  an  ambiguous  state  of  things  which  will 
cause  the  declaration  to  operate  retroactively,  The  Herstelder  (1799), 
1  C.  Robinson,  114. 

The  method  of  Brazil's  entry  into  the  Great  War  presents  some 
unusual  features.  After  the  sinking  of  the  Parana  with  loss  of  life 
on  the  night  of  April  3  and  4,  1917  Brazil  broke  off  diplomatic  rela- 
tions with  Germany.  When  the  United  States  declared  war  on  Ger- 
many on  April  6,  1917  Brazil  issued  the  customary  proclamation  of 
neutrality,  but  on  May  11,  the  President  of  Brazil  said  to  the  Brazilian 
Congress: 

The  Brazilian  nation,  with  firmness  but  without  hostile  In- 
tentions,  can  take   into   consideration   through   its  legislative 


388         BELLIGERENT  RELATIONS  OF  STATES. 

organ  the  fact  that  one  of  the  belligerents  is  an  integral  part 
of  the  American  continent  and  that  we  are  bound  to  that 
belligerent  by  traditional  friendship  and  by  the  same  po- 
litical ideal  as  to  the  defense  of  the  vital  interests  of  Amer- 
ica and  of  the  accepted  principles  of  international  law. 

In  response  to  this  intimation,  Congress  on  June  1,  1917,  adopted 
a  decree  which  revoked  the  neutrality  of  Brazil  in  the  war  between 
the  United  States  and  Germany.  Meanhwhile  the  Germans  on  May 
22  had  sunk  the  Brazilian  merchantman  Tijuca.  Because  of  these 
and  other  acts  of  aggression  the  Congress,  upon  recommendation  of 
the  President,  adopted,  on  October  26,  1917,  a  decree  containing  the 
following  words: 

There  is  recognized  and  proclaimed  a  state  of  war  initiated 
by  the  German  Empire  against  Brazil. 

This  resolution,  like  that  adopted  by  the  American  Congress  on 
April  25,  1898,  recognized  a  state  of  war  as  already  existing,  but 
unlike  the  American  resolution  it  did  not  fix  the  date  when  the  war 
status  began.  Since  Brazil  accepted  the  hostile  acts  of  Germany  as 
constituting  war,  the  war  status  may  be  said  to  date  from  the  first 
of  those  acts  which  she  chose  to  regard  as  an  act  of  war.  Hence 
the  war  may  have  begun  at  least  as  early  as  the  sinking  of  the 
Parana  on  April  3.  The  Brazilian  documents  may  be  found  in  Guerra 
da  Europa,  Documentos  Diplomaticos,  Attitude  do  Bra-sil,  1914-1917, 
published  by  the  Ministry  of  Foreign  Affairs. 

Prior  to  the  actual  outbreak  of  war,  its  imminence  will  justify 
precautions,  The  Teutonia  (1870),  L.  R.  4  P.  C.  471.  War  may  exisr, 
by  the  declaration  of  one  belligerent  only,  The  Nayade  (1802),  4  C. 
Robinson,  251;  The  Success  (1812),  1  Dodson,  133;  The  Pedro  (1899), 
175  U.  S.  354.  On  this  point  Lord  Stowell  in  The  Eliza  Ann  (1813),  1 
Dodson,  244,  said: 

A  declaration  of  war  by  one  country  was  not  a  mere  chal- 
lenge to  be  accepted  or  refused  by  the  other.  On  the  contrary, 
it  served  to  show  the  existence  of  actual  hostilities  on  one 
side  at  least;  and  hence  put  the  other  party  also  into  a  state 
of  war,  even  though  he  might  think  proper  to  act  on  the  de- 
fensive only. 

The  assumption  by  governments  of  the  exclusive  right  to  wage  war, 
the  employment  in  war  of  no  forces  but  those  under  public  control 
and  the  abolition  of  privateering  have  led  to  the  abandonment  of 
the  distinctions  made  in  the  eighteenth  century  and  earlier  between 
a  perfect  and  a  limited  or  imperfect  war,  between  a  war  which  is 
solemn  and  public  and  one  which  is  not, — distinctions  which  appear 
in  Bas  v.  Tingy  (1800),  4  Dallas,  35,  and  Talbot  v.  Seaman  (1801), 
1  Cranch,  1.  The  labored  efforts  of  the  United  States  Supreme  Court 
to  characterize  the  relations  between  the  United  States  and  France 
at  the  end  of  the  eighteenth  century  as  a  kind  of  limited  war  while 
at  the  same  holding  that  the  two  countries  were  not  at  war  demon- 


EX  PARTE  BELLI.  389 

strated  the  futility  of  the  distinctions  which  it  sought  to  make. 
Likewise  the  attempt  of  President  Wilson  in  his  address  to  Congress 
on  April  2,  1917,  to  reconcile  hostilities  against  the  German  govern- 
ment with  the  existence  of  friendship  for  the  German  people  may 
have  been  justified  by  considerations  of  policy,  but  it  has  no  basis 
in  law  or  in  international  practice.  Hostile  measures  may  be  adopted 
by  one  nation  against  another  without  producing  a  war  status,  and 
the  intent  with  which  such  measures  are  adopted  may  long  remain 
in  doubt;  but  if  the  war  status  is  created,  it  is  necessarily  that  which 
the  older  writers  described  as  solemn,  public  and  perfect  war. 

On  the  whole  subject  see  Barclay,  Law  and  Usage  of  War;  Bordwell, 
The  Law  of  War;  Int.  Law  Sit.  1910,  45;  Int.  Law  Topics,  1913,  54; 
Cobbett,  Cases  and  Opinions,  II,  1;  Hyde,  II,  195;  Bonfils  (Fauchille), 
sec.  1027;  Moore,  Digest,  VII,  168. 


SECTION  2.    THE  STATUS  OF  ALIEN  ENEMIES. 
EX  PARTE  BELLI. 

SUPREME  COURT  OF  SOUTH  AFBICA.     1914. 
S.  A.  Law  Reports  [1914]  C.  P.  D.,  Part  1,  742. 

MAASDORP,  J.  P.  The  petitioner  in  this  case  says  that  he  is  a 
German  subject,  that  he  arrived  in  this  country  as  far  back  as 
the  year  1906,  and  that  he  has  since  been  employed  in  the  serv- 
ice of  certain  dentists,  who  practise  in  this  town.  Lately  he  was 
called  upon  as  a  German  subject,  by  some  notice  put  in  the 
papers,  to  report  himself  from  time  to  time  at  the  magistrate's 
court.  This  injunction  he  seems  to  have  observed,  but  later  on 
he  received  a  further  injunction  requiring  him  to  present  him- 
self, equipped  in  a  certain  way,  in  order  that  he  might  be  re- 
moved to  the  Transvaal.  .  .  .  Petitioner  now  asks  the  Court 
to  protect  him  from  this  injunction,  on  the  ground  that  it  is 
illegal.  .  .  . 

A  great  deal  of  authority  has  been  cited  at  the  Bar  which 
deals  very  generally  with  the  rights  of  alien  subjects  and  enemy 
subjects,  and  I  think  the  matter  may  be  narrowed  down  largely 
to  merely  considering  now  what  the  position  of  the  petitioner  is 
in  this  particular  case,  and  I  cannot  do  better,  in  order  to 
abridge  my  remarks  as  much  as  possible,  than  refer  to  the  pos- 
itive law  of  the  country  and  international  law,  as  laid  down  by 
Halleck  in  his  work  on  International  Law.  He  states,  in  chap- 


390         BELLIGERENT  RELATIONS  OF  STATES. 

ter  17,  section  13:  "One  of  the  immediate  consequences  of  the 
position  in  which  the  citizens  and  subjects  of  belligerent  States 
are  placed  by  the  declaration  of  war  is  that  all  the  subjects  of 
one  of  the  hostile  Powers  within  the  territory  of  the  other  are 
liable  to  be  seized  and  retained  as  prisoners  of  war."  If  this  is 
a  correct  statement  of  the  law,  then  the  petitioner  in  this  case 
would  be  liable  to  be  seized  and  detained  as  a  prisoner  of  war. 
That,  on  the  face  of  it,  appears  to  be  a  very  harsh  rule,  but  it 
may  be  administered  in  a  lenient  manner,  so  as  to  cause  as  little 
prejudice  as  possible,  and  different  nations  have,  in  dealing 
with  this  rule,  modified  it  and  mitigated  its  harsh  character.  In 
the  passage  immediately  following,  Halleck  says:  "But  this 
extreme  right,  founded  on  the  positive  law  of  nations,  has  been 
stripped  of  much  of  its  rigour  in  modern  warfare  by  the  milder 
rules  resulting  from  the  usage  of  nations,  the  stipulations  of 
treaties,  and  the  municipal  laws  and  ordinances  of  particular 
States." 

It  would,  therefore,  follow  that  in  the  necessities  of  war  it 
might  at  times  be  necessary  for  the  State  to  use  what  appeared 
to  be  harsher  measures  than  at  other  times.  The  right  exists  to 
enforce  the  rule  that  has  been  stated,  and  the  only  question  is  as 
to  the  manner  in  which  it  should  be  employed,  and  the  discre- 
tion in  that  respect  is  in  the  Government  of  the  country,  because 
there  is  no  positive  rule  of  law  in  the  country  which  this  Court 
can  enforce  in  order  to  prevent  the  Government  from  using  its 
discretion  in  the  matter.  Halleck  gives  the  different  instances 
in  which  from  time  to  time  this  rule  has  become  milder  in  its 
application,  and  he  concludes  thus:  "Other  nations  have  made 
similar  decrees,  but, x  however  strong  the  current  of  modern 
authority  in  favor  of  the  milder  principle,  nevertheless  the  an- 
cient and  stricter  rule  must  still  be  regarded  as  the  law  of  na- 
tions." That  being  the  law  of  nations — and  we  are  now  asked 
to  enforce  the  law  of  nations — it  would  appear  that  the  law  we 
are  called  upon  to  enforce  is  a  law  that  leaves  the  whole  matter 
in  the  discretion  of  the  Government.  There  is  one  passage  more 
I  desire  to  quote  from  Halleck,  in  which  he  deals  with  enemy 
property  found  in  a  country  at  a  time  when  war  has  been  de- 
clared: "What  we  have  said  of  the  detention  of  the  enemy's 
person  holds  good  with  respect  to  the  right  to  seize  and  confis- 
cate that  enemy's  property  found  within  territory  of  the  other 
belligerents  at  the  commencement  of  hostilities.  In  former  times 
this  right  was  exercised  with  great  rigour,  but  it  has  now  be- 


EX  PARTE  BELLI.  391 

come  an  established,  though  not  an  inflexible  rule  of  internation- 
al law,  that  such  property  is  not  liable  to  confiscation  as  a  prize 
of  war."  Now,  although  he  describes  this  rule  as  a  rule  of 
international  law,  he  goes  on  to  say,  "  'This  rule,'  says  Mar- 
shall, C.  J.,  'like  other  precepts  of  morality,  of  humanity,  and 
even  of  wisdom,  is  addressed  to  the  judgment  of  the  Sovereign, 
it  is  a  guide  which  he  follows  or  abandons  at  his.  will;  and  al- 
though it  cannot  be  disregarded  by  him  without  obloquy,  yet  it 
may  be  disregarded.  It  is  not  an  immutable  rule  of  law,  but  de- 
pends on  political  considerations,  which  may  continually  vary. '  ' 
Without  making  any  further  general  remarks,  I  may  refer  to 
one  more  authority  in  Vol.  14  of  the  Encyclopedia  of  the  Laws 
of  England  (p.  564),  viz.:  "The  question  whether  a  belligerent 
State  should  allow  subjects  of  the  State  with  which  it  is  at  war 
to  remain  in  the  country  or  not  is  entirely  governed  by  the 
necessities  of  war."  All  these  amendments  of  international  law 
are  subject  to  the  necessities  of  war.  The  "necessities  of  war" 
is  a  matter  that  this  Court  cannot  deal  with.  It  is  a  matter 
really  within  the  knowledge  and  affects  the  discretion  of  the  Gov- 
ernment, and  it  would  seem  from  the  petition  which  has  been 
put  in  that  the  Government  of  this  country,  acting  through  the 
authorities  which  are  mentioned  as  dealing  with  this  particular 
case  at  the  magistrate's  court,  consider  it  advisable  that  certain 
enemy  subjects,  they  being  German  subjects,  should  for  the 
present  be  removed  from  certain  parts  of  the  country  to  an- 
other part  of  the  country.  So  far  as  we  know,  there  is  no  inten- 
tion to  deal  harshly  with  these  people.  They  are  simply  re- 
moved from  this  part  of  the  country  to  the  Transvaal.  That  is 
all  the  petition  tells  us,  and,  although  it  may  be  a  hardship,  I 
have  no  doubt  that  the  instructions  here  given  by  the  Govern- 
ment under  the  necessities  of  the  case  will  be  carried  out  in  such 
a  way  as  to  cause  as  little  hardship  to  those  who  come  under  it  as 
possible.  What  the  petitioner  says  is  that  he  has  been  illegally 
treated.  He  has  not  satisfied  the  Court  that  he  has  been  illegally 
treated,  and  he  should  have  satisfied  the  Court  by  pointing  out 
some  law  in  this  country  under  which  the  Court  can  protect  him, 
and  he  has  certainly  failed  to  do  so.  Under  the  circumstances, 
I  think  the  application  must  be  refused. 


392         BELLIGERENT  RELATIONS  OF  STATES. 


SCHAFFENIUS  v.  GOLDBERG. 

COUBT  OF  APPEAL  OF  ENGLAND.     1915. 
Law  Reports  [1916]   1  K.  B.  284. 

[The  plaintiff,  a  native-born  citizen  of  Germany  who  had  re- 
sided in  England  for  twenty-two  years  prior  to  1914,  was  duly 
registered  in  August,  1914,  as  an  enemy  alien.  His  conduct  had 
been  unobjectionable.  After  the  outbreak  of  war  he  had  entered 
into  a  contract  with  the  defendant,  a  British  subject,  for  the 
manufacture  of  picture  mouldings,  and  the  performance  of  the 
contract  was  begun  by  both  parties.  On  July  1,  1915,  the  plain- 
tiff was  interned  simply  as  part  "of  the  general  policy  of  intern- 
ing all  enemy  male  aliens  of  military  age.  Afterward  and  while 
interned,  plaintiff  instituted  suit  to  compel  the  return  of  money 
advanced  to  the  defendant,  who  answered  that  the  plaintiff's 
internment  operated  as  a  revocation  of  his  license  to  remain  in 
the  kingdom,  made  him  a  prisoner  of  war  and  hence  disabled 
him  from  maintaining  any  suit  in  the  King's  courts.  Mr.  Jus- 
tice Younger  having  held  that  internment  did  not  prevent  the 
plaintiff  from  maintaining  this  suit,  the  defendant  appealed.] 

LORD  COZENS-HARDY  M.  R.  .  .  .  The  only  point  which  has 
been  tried  is  whether  the  plaintiff  can  take  any  proceedings 
having  regard  to  his  internment — in  other  words,  whether  he  is 
exlex  and  has  no  locus  standi  in  the  Courts,  so  that  the  action 
ought  to  be  dismissed.  Younger  J.  made  a  declaration  that  the 
contract  between  the  plaintiff  and  the  defendant  was  not  af- 
fected by  the  plaintiff's  internment,  and  that  the  plaintiff  was 
entitled  to  sue  upon  the  contract  and  maintain  an  action.  From 
that  decision  this  appeal  is  brought. 

I  think  one  must  be  very  careful  in  deciding  the  case  neither 
expressly  nor  by  reasonable  implication  to  say  anything  incon- 
sistent with  the  judgment  of  the  full  Court  of  Appeal  in  the 
case  of  Porter  v.  Freudenberg,  [1915]  1  K.  B.  857,  delivered  by 
Lord  Reading,  but  delivered  by  him  after  the  most  elaborate 
discussion  with  all  the  other  members  of  the  Court.  What  did 
that  case  decide?  It  decided  that  for  the  purpose  of  trading  it 
is  not  a  person's  nationality  that  determines  whether  he  is  an 
"alien  enemy."  That  is  not  the  test.  It  decided  also,  approv- 
ing Sargant  J.  's  judgment  in  Princess  Thurn  and  Taxis  v.  Mof- 


SCHAFFENIUS  v.  GOLDBERG.  393 

fitt,  [1915]  1  Ch.  58,  that  registration  operated  as  a  license  by 
the  Crown  to  the  registered  person  to  remain  commorant  here. 
It  did  not  decide,  nor  could  the  Court  have  reasonably  been 
asked  to  decide,  that  such  a  license  could  not  be  revoked  by  the 
Crown.  But  there  is  no  circumstance  here  which  can  be  sug- 
gested for  one  moment  as  affording  evidence  of  revocation  un- 
less it  be  the  internment  which  took  place  in  July  of  this  year. 
We  have  been  taken  back  to  a  number  of  authorities,  most  of 
which  were  referred  to  and  discussed  in  Porter  v.  Freudenberg, 
the  case  heard  before  the  full  Court  of  Appeal.  I  do  not  intend 
to  go  back  on  anything  that  was  said  there,  but  there  is  one  point 
at  least  in  this  case  which  may  be  taken  to  be  a  new  point,  and  it 
is  this.  It  is  said  that  though  it  is  true  that  registration  has  the 
effect  of  a  permission  from  the  Crown  to  remain  in  this  country, 
that  permission  only  lasts  so  long  as  the  licensee  does  not  molest 
the  Crown  and  is  not  molested  by  it ;  and  it  is  further  said  that 
the  plaintiff  is  plainly  molested  by  being  kept  in  confinement 
in  the  Isle  of  Man  under  the  internment  Order.  I  think  there 
is  absolutely  no  authority  for  that  proposition.  One  authority 
relied  upon  was  the  case  of  Wells  v.  Williams,  1  Ld.  Raym.  283 ; 
1  Salk.  46,  and  reliance  was  placed  on  one  passage  only.  The 
judge  presiding  in  the  Court  said  this:  "Though  the  plaintiff 
came  here  since  the  war,  yet  if  he  has  continued  here  by  the 
King's  leave  and  protection  ever  since,  without  molesting  the 
Government  or  being  molested  by  it,  he  may  be  allowed  to  sue, 
for  that  is  consequent  on  his  being  in  protection. ' '  What  is  the 
meaning  of  those  words  " being  molested  by  the  Crown"?  I 
think  they  mean  only  this,  that  if  it  be  shown  that,  although  the 
license  was  given  by  the  Crown,  that  license  was  subsequently 
withdrawn  by  the  Crown,  that  is  a  molestation,  which  would 
prevent,  or  might  prevent,  the  plaintiff  from  suing.  I  do  not 
rely  solely  upon  that  construction  of  these  words,  because  the 
case  is  reported  more  than  once.  In  the  report  in  Salkeld  the 
words  which  I  have  read  about  molesting  the  Government,  or 
being  molested  by  the  Government,  are  not  to  be  found.  The 
judgment  is  very  short,  and  I  will  read  the  material  portion  of 
it:  "If  an  alien  enemy  comes  hither  sub  salvo  conductu,  he 
may  maintain  an  action :  if  an  alien  enemy  comes  hither  in  time 
of  peace,  per  licentiam  domini  regis,  as  the  French  Protestants 
did,  and  lives  here  sub  protectione,  and  a  war  afterwards  begins 
between  the  two  nations,  he  may  maintain  an  action;  for  suing 
is  but  a  consequential  right  of  protection."  That  judgment 


394         BELLIGERENT  RELATIONS  OP  STATES. 

seems  to  me  to  put  the  case  of  Wells  v.  Williams  on  a  perfectly 
satisfactory  foundation,  and  I  entirely  decline  to  assume  that 
such  an  important  proposition  as  the  appellant  here  relies  upon 
can  be  established  upon  a  single  sentence  in  a  short  judgment 
in  Lord  Raymond's  reports.  The  observation  in  question  seems 
to  me  to  be  wholly  irrelevant,  and,  if  I  may  respectfully  say  so, 
either  it  must  be  wrong,  or  else  "molesting"  refers  to  the  rev- 
ocation by  the  Crown  under  its  prerogative  of  the  license  to  re- 
main in  this  country. 

Then  it  is  said  that  there  is  no  authority  at  all  which  supports 
the  contention  in  this  case,  and  there  is  authoriy  against  it,  and 
we  have  been  referred  to  three  old  cases  which  have  laid  down 
the  proposition,  which  I  do  not  for  a  moment  question, 
that  a  writ  of  habeas  corpus  cannot  be  taken  out  by  a 
prisoner  of  war,  and  also  to  the  very  recent  case  in  the  Divi- 
sional Court  of  Rex  v.  Superintendent  of  Vine  Street  Police 
Station,  Ex  parte  Liebmann,  [1916]  1  K.  B.  268,  in  which  it  was 
held  that  an  interned  prisoner  was  equally  unable  to  apply  for 
a  writ  of  habeas  corpus.  That  is  all  that  that  case  decided,  and 
the  decision  seems  to  me,  if  I  may  respectfully  say  so,  to  be  per- 
fectly right ;  but,  speaking  for  myself  only,  I  desire  not  to  be 
held  to  accept  in  its  entirety  the  language  used  by  the  two 
learned  judges,  Bailhache  J.  and  Low  J.  It  is  sought  to  treat 
those  observations  as  a  decision  that  an  interned  German  in  the 
circumstances  in  which  the  plaintiff  finds  himself  is  for  the  pur- 
pose of  enforcing  civil  rights  to  be  treated  as  a  prisoner  of  war 
in  the  same  way  as  if  he  had  been  captured  in  a  German  ship, 
or  at  some  point  in  Flanders  or  elsewhere.  Any  such  decision 
would,  I  think,  be  an  extension  of  the  law  which  I  cannot  in  any 
way  countenance.  But  I  do  not  think  that  the  case  is  really  so 
bare  of  authority  as  was  suggested.  One  of  the  cases  to  which 
our  attention  has  been  properly  called  is  that  of  Sparenburgh 
v.  Bannatyne,  1  Bos.  &  P.  163,  168.  In  that  case  the  question 
was  whether  a  German  taken  on  a  Dutch  privateer  vessel  which 
was  properly  captured  by  the  British  Government  could  whilst 
a  prisoner  of  war  bring  an  action  for  wages  due.  The  Court, 
consisting  of  Eyre  C.  J.,  Heath  J.,  and  Rooke  J.,  dealt  with  it  in 
observations  which  seem  to  me  to  be  very  helpful.  Eyre  C.  J.  says : 
"But  a  neutral,  whether  in  or  out  of  prison,  cannot,  for  that  rea- 
son, be  an  alien  enemy;  he  can  be  an  alien  enemy  only  with  re- 
spect to  what  he  is  doing  under  a  local  or  temporary  allegiance 
to  a  Power  at  war  with  us.  When  the  allegiance  determines, 


SCHAFFENIUS  v.  GOLDBERG.  395 

the  character  determines.  He  can  have  no  fixed  character  of 
alien  enemy  who  owes  no'  fixed  allegiance  to  our  enemy,  and  has 
ceased  to  be  in  hostility  against  us:  it  being  only  in  respect  of 
his  being  in  a  state  of  actual  hostility  that  he  was  even  for  a 
time  an  enemy  at  all.  As  a  prisoner  of  war,  how  does  he  differ 
from  any  other  individual  who  is  in  custody  for  an  offence  which 
he  has  committed,  and  for  which  he  is  answerable"?  A  prisoner 
who  may  be  committed  to  prison  for  an  offence  is  not  exlex — he 
is  entitled  to  assert  his  civil  rights ;  and  it  is  not  right  to  say  in 
this  case  that  the  plaintiff,  although  his  personal  liberty  is  cur- 
tailed by  the  internment  Order,  as  it  was,  though  to  a  less  ex- 
tent, by  the  Order  under  the  Aliens  Restriction  Act,  has  lost  all 
power  of  enforcing  his  rights  in  respect  of  the  trade  which  he 
has  been  carrying  on  without  any  possibility  of  complaint  since 
the  agreement  entered  into  by  him  in  March  of  this  year.  But 
the  matter  does  not  rest  there.  Heath  J.  says  this,  1  Bos.  &  P. 
170:  "Next  to  the  general  question,  the  pleas  state  that  the 
plaintiff  was  adhering  to  the  King's  enemies;  that  must  be 
proved  in  all  their  parts;  but  a  prisoner  at  war  is  not  adhering 
to  the  King's  enemies,  for  he  is  here  under  protection  of  the 
King.  If  he  conspires  against  the  life  of  the  King  it  is  high 
treason ;  if  he  is  killed,  it  is  murder ;  he  does  not  therefore  stand 
in  the  same  situation  as  when  in  a  state  of  actual  hostility.  It 
has  been  said,  that  a  prisoner  at  war  cannot  contract;  his  case 
would  be  hard  indeed  if  that  were  true" — which  I  think  must 
be  taken  to  mean  that  he  can  contract  and  can  assert  his  rights 
under  the  contract.  Then  lower  down  Heath  J.  says:  ''The 
contract  in  question  was  made  by  the  permission  of  the  King's 
officer,  and  therefore  by  the  license  of  the  King,  under  whose 
authority  the  officer  may  be  presumed  to  have  acted/'  Rooke 
J.  says  the  same  thing:  "An  enemy  under  the  King's  protec- 
tion may  sue  and  be  sued :  that  cannot  be  doubted.  A  prisoner 
at  war  is  for  certain  purposes  under  the  King's  protection,  and 
there  are  many  cases  where  he  can  maintain  an  action.  I  will 
suppose  that  an  officer  of  high  rank  on  his  parole  is  possessed 
of  a  ring  or  jewel  of  great  value,  on  which  he  wants  to  raise 
money,  and  that  a  tradesman  is  so  dishonest  as  to  receive  it  from 
him,  and  refuse  either  to  advance  the  money  or  return  the 
pledge.  Surely  the  Court  would  say  that  he  might  recover  his 
ring  or  his  jewel  from  the  tradesman."  If  authority  be  wanted 
in  support  of  the  view  I  take  I  think  it  is  to  be  found  in  the  case 
of  Sparenburgh  v.  Bannatyne,  1  Bos.  &  P.  163.  But  I  do  not 


396    BELLIGERENT  RELATIONS  OF  STATES. 

base  my  judgment  upon  that  case  alone.  It  seems  to  me  to  be 
in  accordance  with  general  principles,  and  only  in  accordance 
with  general  principles,  that  the  restraint  which  is  imposed 
upon  the  personal  movements  of  an  interned  German  does  not 
deprive  him  of  civil  rights  in  respect  of  a  lawful  contract  en- 
tered into  by  him  before  the  internment. 

For  these  reasons  I  think  the  appeal  fails  and  must  be  dis- 
missed with  costs. 

[BANKES  L.  J.  and  WARRINGTON  L.  J.  delivered  concurring 
opinions.] 

NOTE. — The  status  of  alien  enemies  is  not  determined  by  inter- 
national law  but  by  the  municipal  law  of  the  country  where  they  are 
found.  The  distinction  between  alien  enemy  and  alien  friend  is  in 
English  law  as  old  at  least  as  Magna  Charta,  (see  ch.  42).  When 
England  was  overrun  with  foreigners,  especially  court  favorites,  the 
distinction  seems  to  have  been  lost  sight  of,  but  in  the  fifteenth  cen- 
tury it  was  revived  (Littleton,  Tenures,  198),  and  the  plea  of  alien 
enemy  came  to  be  recognized  as  a  sufficient  defense  to  any  personal 
action  which  he  might  bring.  But  as  early  as  Calvin's  Case  (1608), 
7  Reports,  18a,  distinctions  began  to  be  made.  There  was  the  "in- 
imicus  permissus,  an  enemy  that  cometh  into  the  realm  by  the  King's 
safe  conduct," — a  favored  person,  who  in  Wells  v.  Williams  (1697),  1 
Lord  Raymond,  282,  was  allowed  to  sue  because  he  enjoyed  the  King's 
protection.  But  without  such  protection  the  alien  enemy  in  England 
was  practically  an  outlaw.  In  Sylvester's  Case  (1701),  7  Modern,  150, 
the  court  said: 

If  an  alien  enemy  come  into  England  without  the  Queen's 
protection  he  shall  be  seized  and  imprisoned  by  the  law  of 
England  and  he  shall  have  no  advantage  of  the  law  of  Eng- 
land nor  for  any  wrong  done  to  him  here. 

In  Boulton  v.  Dobree  (1808),  2  Camp.  163,  it  was  held  that  a  resi- 
dent alien  enemy  must  offer  affirmative  proof  of  his  right  to  remain. 
"Although  he  went  at  large,"  said  Lord  Ellenborough,  "it  did  not 
appear  that  government  knew  he  was  in  the  Kingdom."  Chancellor 
Kent  took  a  more  liberal  view.  "By  the  law  of  nature,"  he  said, 
"an  alien  who  comes  to  reside  in  a  foreign  country  is  entitled,  so 
long  as  he  conducts  himself  peaceably,  to  continue  to  reside  there, 
under  the  public  protection;  and  it  requires  the  express  will  of  the 
sovereign  power  to  order  him  away,"  Clarke  v.  Morey  (1813),  10 
John.  69.  A  fortiori  if  a  belligerent  state  enacts  any  regulations  for 
the  control  of  enemy  aliens  within  its  limits,  such  as  registration, 
those  who  comply  therewith  may  reasonably  argue  that  such  com- 
pliance gives  them  a  license  to  remain. 

At  the  outbreak  of  war,  a  belligerent  state  is  confronted  by  two 
questions  with  regard  to  the  enemy  aliens  who  may  be  within  its 
borders: 


NOTE.  397 

1.  Shall  it  allow  them  to  withdraw?    The  situation  of  an  enemy 
alien  in  the  territory  of  a  hostile  state  was  attended  with  so  much 
hardship  that  the  privilege  of  withdrawal  was  highly  prized.     There 
have   been   comparatively   few   instances   of   wholesale   detention,   but 
there  is  no  rule  of  international  law  on  the  subject,  and  the  negotia- 
tion of  a  long  list  of  treaties  in  which  the  privilege  of  withdrawal  was 
expressly  stipulated  intimates  the  existence  of  the  right  of  detention 
in  the  absence  of  treaty  provision  to  the  contrary  and  the  fear  that  the 
right  would  be  exercised.    Vattel  argued  that  a  sovereign  who  initiated 
a  war  would  be  guilty  of  bad  faith  if  he  failed  to  allow  the  subjects 
of  his  enemy  a  reasonable  time  in  which  to  withdraw.     On  the  other 
hand  with  the  present   rule  of  universal  military  service,  there  are 
sound  reasons  of  public  policy  justifying  the  detention  of  enemy  aliens 
who,    if   allowed   to    depart,    would    strengthen   the   resources   of   the 
enemy.     Detention  in  such  a  case  is  only  self-protection. 

2.  On  what  terms  shall  it  allow  them  to  remain?    When  the  num- 
ber of  enemy  aliens  in  a  country  was  inconsiderable,  this  was  a  ques- 
tion of  little  importance,  but  in  the  Great  War,  it  was  a  problem  of 
great  magnitude.     On  May  15,  1915,  the  Prime  Minister  stated  in  the 
House  of  Commons  that  there  were  then  19,000  alien  enemies  interned 
in  England  and  40,000  uninterned.    The  presence  of  so  large  a  number 
of  alien  enemies  was  a  grave  menace,  and  Great  Britain  finally  adopted 
the  policy  of  interning  all  male  alien  enemies  of  military  age.    This  was 
done  partly  for  their  protection,  in  order  that  they  might  be  saved 
from  attacks  due  to  resentment  provoked  by  the  German  air  raids  on 
English  watering  places,  the  use  of  poison  gas  and  such  acts  as  the 
sinking  of  the  Lusitania.     Germany  and  Austria  detained  British  and 
French  males  of  military  age.     In  the  United  States  the  number  of 
enefny  aliens  was  enormous,  but  comparatively  few  of  them  were  in- 
terned.    They  were  required  to  register  however  and  their  freedom 
of  movement  was  greatly  restricted. 

The  practice  of  allowing  enemy  aliens  to  remain  so  long  as  they 
conduct  themselves  properly  seems  to  have  originated  about  1756,  when 
England  accorded  such  permission  to  French  citizens  then  in  the 
country.  Prior  to  that  time  it  seems  to  have  been  expected  that  they 
would  depart  soon  after  the  outbreak  of  war,  and  the  time  within 
which  they  must  do  so  was  fixed  by  statute  and  by  treaty.  By  the 
Statute  of  the  Staple,  27  Ed.  Ill,  St.  2  c.  17,  foreign  enemy  merchants 
were  allowed  forty  days  within  which  to  depart  with  their  goods.  The 
period  allowed  by  treaty  varied  from  three  months  to  a  year.  Those 
who  remained  beyond  the  stipulated  period  must  submit  to  whatever 
police  measures  the  territorial  authorities  deemed  necessary. 

Internment  is  a  war  measure  and  an  interned  alien  is  a  prisoner  of 
war,  The  King  v.  Superintendent  of  Vine  Street  Police  Station  (1915), 
L.  R.  [1916]  1  K.  B.  268.  Internment  does  not  necessarily  deprive  an 
alien  enemy  of  civil  rights  which  he  would  otherwise  enjoy.  A  con- 
tract of  agency  made  by  a  resident  alien  enemy  before  the  outbreak 
of  war  is  not  terminated  by  his  internment,  Nordman  v.  Rayner  and 
Sturges  (1916),  33  T.  L.  R.  87,  nor  is  the  trustee  of  an  estate  who 
is  interned  as  a  dangerous  alien  thereby  ousted  from  his  trusteeship 


398         BELLIGERENT  RELATIONS  OF  STATES. 

although  his  internment  may  prevent  him  from  acting,  In  re  Amsinck  s 
Estate  (1918),  169  N.  Y.  Supp.  336.  See  also  DeLacey  v.  United  States 
(1918),  249  Fed.  625;  Ex  parte  Graber  (1918),  247  Fed.  882;  Minotto 
v.  Bradley  (1918),  252  Fed.  600;  Ex  parte  Fronklin  (1918),  253  Fed. 
984.  In  Kansas,  where  an  alien  resident  who  is  eligible  to  natualiza- 
tion  and  who  has  declared  his  intention  to  become  a  citizen  may  vote, 
it  was  held  that  since  an  alien  enemy  cannot  be  naturalized  he  loses 
his  right  to  vote,  State  v.  Covell  (1918),  103  •  Kan.  754.  On  the 
status  of  enemy  aliens  see  Hunter,  "Alien  Rights  in  the  United  States 
in  War  Time,"  Michigan  Law  Review,  XVII,  33;  Picciotto,  "Alien 
Enemy  Persons,  Firms  and  Corporations  in  English  Law,"  Yale  Law 
Journal,  XXVII,  167;  Page,  War  and  Alien  Enemies;  McNair,  Essays  and 
Lectures  upon  Some  Legal  Effects  of  War;  Garner,  International  Law 
and  the  World  War;  Cobbett,  Cases  and  Opinions,  II.  45;  Bonfils 
(Fauchille),  sec.  1052;  Hyde  II,  226;  Moore,  Digest,  IV,  128;  VII,  191. 


SECTION  4.    THE  EFFECT  OF  WAR  ON  TREATIES  BETWEEN 
BELLIGERENTS. 

THE  SOCIETY  FOR  THE  PROPAGATION  OF  THE  GOS- 
PEL IN  FOREIGN  PARTS  v.  THE  TOWN  OF  NEW- 
HAVEN,  AND  WILLIAM  WHEELER. 

SUPREME  COURT  OF  THE  UNITED  STATES.    1823. 
8  Wheaton,  464. 

This  case  came  before  the  Court  upon  a  certificate  of  a  division 
in  opinion  of  the  Judges  of  the  Circuit  Court  for  the  District  of 
Vermont.  It  was  an  action  of  ejectment,  brought  by  the  plain- 
tiffs against  the  defendants,  in  that  Court.  .  .  .  By  a  charter 
granted  by  William  III  ...  a  number  of  persons,  sub- 
jects of  England  .  .  .  were  incorporated  by  the  name  of 
"The  Society  for  the  Propagation  of  the  Gospel  in  Foreign 
Parts"  .  .  .  The  corporation  has  ever  since  existed,  and  now 
exists,  as  an  organized  body  politic  and  corporate,  in  Eng- 
land, all  the  members  thereof  being  subjects  of  the  king  of 
Great  Britain.  On  the  2d  of  November,  1761,  a  grant  was  made 
by  the  governor  of  the  province  of  New  Hampshire,  in  the  name 
of  the  king,  by  which  a  certain  tract  of  land  ...  so  granted, 
was  to  be  incorporated  into  a  town,  by  the  name  of  New-Haven, 
and  to  be  divided  into  sixty-eight  shares,  one  of  which  was 
granted  to  "The  Society  for  the  Propagation  of  the  Gospel  in 
Foreign  Parts."  .  .  .  On  the  30th  of  October,  1794,  the  Leg- 


THE  SOCIETY  ETC.  v.  NEW-HAVEN.  399 

islature  of  Vermont  passed  an  act,  declaring  that  the  rights  to 
land  in  that  State,  granted  under  the  authority  of  the  British 
government  previous  to  the  revolution,  to  "The  Society  for  the 
Propagation  of  the  Gospel  in  Foreign  Parts,"  were  thereby 
granted  severally  to  the  respective  towns  in  which  such  lands 
lay.  .  .  .  Under  this  law,  the  selectmen  of  the  town  of  New- 
Haven  executed  a  perpetual  lease  of  a  part  of  the  demanded 
premises,  to  the  defendant,  "William  Wheeler.  .  .  . 

MR.  JUSTICE  WASHINGTON  delivered  the  opinion  of  the  Court : 

It  has  been  contended  by  the  counsel  for  the  defendants, 

1st.  That  the  capacity  of  the  plaintiffs,  as  a  corporation,  to 
hold  lands  in  Vermont,  ceased  by,  and  as  a  consequence  of,  the 
revolution. 

2dly.  That  the  society  being,  in  its  politic  capacity,  a  foreign 
corporation,  it  is  incapable  of  holding  land  in  Vermont,  on  the 
ground  of  alienage ;  and  that  its  rights  are  not  protected  by  the 
treaty  of  peace. 

3dly.  That  if  they  were  so  protected,  still  the  effect  of  the 
last  war  between  the  United  States  and  Great  Britain,  was  to 
put  an  end  to  that  treaty,  and,  consequently,  to  rights  derived 
under  it,  unless  they  have  been  revived  by  the  treaty  of  peace, 
which  was  not  done.  .  .  . 

2.  The  next  question  is,  was  this  property  protected  against 
forfeiture,  for  the  cause  of  alienage,  or  otherwise,  by  the  treaty 
of  peace?  This  question,  as  to  real  estates  belonging  to  British 
subjects,  was  finally  settled  in  this  Court,  in  the  case  of  Orr  v. 
Hodgson  (4  Wheat.  Rep.  453),  in  which  it  was  decided,  that  the 
6th  article  of  the  treaty  protected  the  titles  of  such  persons,  to 
lands  in  the  United  States,  which  would  have  been  liable  to  for- 
feiture, by  escheat,  for  the  cause  of  alienage,  or  to  confiscation, 
jure  belli. 

The  counsel  for  the  defendants  did  not  controvert  this  doc- 
trine, so  far  as  it  applies  to  natural  persons;  but  he  contends, 
that  the  treaty  does  not,  in  its  terms,  embrace  corporations  ex- 
isting in  England,  and  that  it  ought  not  to  be  so  construed.  The 
words  of  the  6th  article  are,  "there  shall  be  no  future  confisca- 
tions made,  nor  any  prosecutions  commenced,  against  any  per- 
son or  persons,  for  or  by  reason  of  the  part  which  he  or  they  may 
have  taken  in  the  present  war ;  and  that  no  person  shall,  on  that 
account,  suffer  any  future  loss  or  damage,  either  in  his  person, 


400         BELLIGERENT  RELATIONS  OF  STATES. 

liberty  or  property,"  &c. 

The  terms  in  which  this  article  is  expressed  are  general  and 
unqualified,  and  we  are  aware  of  no  rule  of  interpretation  ap- 
plicable to  treaties,  or  to  private  contracts,  which  would  author- 
ize the  Court  to  make  exceptions  by  construction,  where  the  par- 
ties to  the  contract  have  not  thought  proper  to  make  them. 
Where  the  language  of  the  parties  is  clear  of  all  ambiguity,  there 
is  no  room  for  construction.  Now,  the  parties  to  this  treaty  have 
agreed,  that  there  shall  be  no  future  confiscations  in  any  case, 
for  the  cause  stated.  How  can  this  Court  say,  that  this  is  a 
case  where,  for  the  cause  stated,  or  for  some  other,  confiscation 
may  lawfully  be  decreed  ?  We  can  discover  no  sound  reason  why 
a  corporation  existing  in  England  may  not  as  well  hold  real 
property  in  the  United  States,  as  ordinary  trustees  for  char- 
itable, or  other  purposes;  or  as  natural  persons  for  their  own 
use.  We  have  seen,  that  the  exemption  of  either,  or  all  of  those 
persons,  from  the  jurisdiction  of  the  Courts  of  the  State  where 
the  property  lies,  affords  no  such  reason. 

It  is  said,  that  a  corporation  cannot  hold  lands,  except  by  per- 
mission of  the  sovereign  authority.  But  this  corporation  did  hold 
the  land  in  question,  by  permission  of  the  sovereign  authority 
before,  during,  and  subsequent  to  the  revolution,  up  to  the  year 
1794,  when  the  Legislature  of  Vermont  granted  it  to  the  town 
of  New-Haven ;  and  the  only  question  is,  whether  this  grant  was 
not  void  by  force  of  the  6th  article  of  the  above  treaty?  We 
think  it  was.  .  .  . 

But  even  if  it  were  admitted  that  the  plaintiffs  are  not  within 
the  protection  of  the  treaty,  it  would  not  follow,  that  their  right 
to  hold  the  land  in  question  was  devested  by  the  act  of  1794,  and 
became  vested  in  the  town  of  New-Haven.  At  the  time  when 
this  law  was  enacted,  the  plaintiffs,  though  aliens,  had  a  com- 
plete, though  defeasible,  title  to  the  land,  of  which  they  could 
not  be  deprived  for  the  cause  of  alienage,  but  by  an  inquest  of 
office;  and  no  grant  of  the  State  could,  upon  the  principles  of 
the  common  law,  be  valid,  until  the  title  of  the  State  was  so 
established.  (Fairfax's  Devisee  v.  Hunter's  Lessee,  7  Cranch's 
Rep.  503.)  Nor  is  it  pretended  by  the  counsel  for  the  defend- 
ants, that  this  doctrine  of  the  common  law  was  changed  by 
any  statute  law  of  the  State  of  Vermont,  at  the  time  when  this 
land  was  granted  to  the  town  of  New-Haven.  This  case  is  alto- 
gether unlike  that  of  Smith  v.  The  State  of  Maryland,  (6 
Cranch's  Rep.  286,)  which  turned  upon  an  act  of  that  State, 


THE  SOCIETY  ETC.  v.  NEW-HAVEN.  401 

passed  in  the  year  1780,  during  the  revolutionary  war,  which 
declared,  that  all  property  within  the  State,  belonging  to  British 
subjects,  should  be  seized,  and  was  thereby  confiscated  to  the  use 
of  the  State;  and  that  the  commissioners  of  confiscated  estates 
should  be  taken  as  being  in  the  actual  seisin  and  possession  of 
the  estates  so  confiscated,  without  any  office  found,  entry,  or 
other  act  to  be  done.  The  law  in  question  passed  long  after  the 
treaty  of  1783,  and  without  confiscating  or  forfeiting  this  land, 
(even  if  that  could  be  legally  done)  grants  the  same  to  the  town 
of  New-Haven. 

3.  The  last  question  respects  the  effect  of  the  late  war, 
[the  War  of  1812]  between  Great  Britain  and  the  United  States, 
upon  rights  existing  under  the  treaty  of  peace.  Under  this 
head,  it  is  contended  by  the  defendants'  counsel,  that  although 
the  plaintiffs  were  protected  by  the  treaty  of  peace,  still,  the 
effect  of  the  last  war  was  to  put  an  end  to  that  treaty,  and,  con- 
sequently, to  civil  rights  derived  under  it,  unless  they  had  been 
revived  and  preserved  by  the  treaty  of  Ghent. 

If  this  argument  were  to  be  admitted  in  all  its  parts,  it  never- 
theless would  not  follow,  that  the  plaintiffs  are  not  entitled  to 
a  judgment  on  this  special  verdict.  The  defendants  claim  title 
to  the  land  in  controversy  solely  under  the  act  of  1794,  stated  in 
the  verdict,  and  contend,  that  by  force  of  that  law,  the  title  of 
the  plaintiffs  was  devested.  But  if  the  Court  has  been  correct  in 
its  opinion  upon  the  first  two  points,  it  will  follow,  that  the  above 
act  was  utterly  void,  being  passed  in  contravention  of  the  treaty 
of  peace,  which,  in  this  respect,  is  to  be  considered  as  the  supreme 
law.  Remove  that  law,  then,  out  of  the  case,  and  the  title  of 
the  plaintiffs,  confirmed  by  the  treaty  of  1794,  remains  un- 
affected by  the  last  war,  it  not  appearing  from  the  verdict,  that 
the  land  was  confiscated,  or  the  plaintiffs'  title  in  any  way  de- 
vested,  during  the  war,  or  since,  by  office  found,  or  even  by  any 
legislative  act. 

But  there  is  a  still  more  decisive  answer  to  this  objection, 
which  is,  that  the  termination  of  a  treaty  cannot  devest  rights 
of  property  already  vested  under  it. 

If  real  estate  be  purchased  or  secured  under  a  treaty,  it  would 
be  most  mischievous  to  admit,  that  the  extinguishment  of  the 
treaty  extinguished  the  right  to  such  estate.  In  truth,  it  no 
more  affects  such  rights,  than  the  repeal  of  a  municipal  law 
affects  rights  acquired  under  it.  If,  for  example,  a  statute  of 
descents  be  repealed,  it  has  never  been  supposed,  that  rights  of 


402         BELLIGERENT  RELATIONS  OF  STATES. 

property  already  vested  during  its  existence,  were  gone  by  such 
repeal.  Such  a  construction  would  overturn  the  best  estab- 
lished doctrines  of  law,  and  sap  the  very  foundation  on  which 
property  rests. 

But  we  are  not  inclined  to  admit  the  doctrine  urged  at  the 
bar,  that  treaties  become  extinguished,  ipso  facto,  by  war  be- 
tween the  two  governments,  unless  they  should  be  revived  by  an 
express  or  implied  renewal  on  the  return  of  peace.  Whatever 
may  be  the  latitude  of  doctrine  laid  down  by  elementary  writers 
on  the  law  of  nations,  dealing  in  general  terms  in  relation  to  this 
subject,  we  are  satisfied,  that  the  doctrine  contended  for  is  not 
universally  true.  There  may  be  treaties  of  such  a  nature,  as 
to  their  object  and  import,  as  that  war  will  put  an  end  to  them ; 
but  where  treaties  contemplate  a  permanent  arrangement  of 
territorial,  and  other  national  rights,  or  whic^h,  in  their  terms, 
are  meant  to  provide  for  the  event  of  an  intervening  war,  it 
would  be  against  every  principle  of  just  interpretation  to  hold 
them  extinguished  by  the  event  of  war.  If  such  were  the  law, 
even  the  treaty  of  1783,  so  far  as  it  fixed  our  limits,  and  acknowl- 
edged our  independence,  would  be  gone,  and  we  should  have 
had  again  to  struggle  for  both  upon  original  revolutionary  prin- 
ciples. Such  a  construction  was  never  asserted,  and  would  be 
so  monstrous  as  to  supersede  all  reasoning. 

We  think,  therefore,  that  treaties  stipulating  for  permanent 
rights  and  general  arrangements,  and  professing  to  aim  at  per- 
petuity, and  to  deal  with  the  case  of  war  as  well  as  of  peace,  do 
not  cease  on  the  occurrence  of  war,  but  are,  at  most,  only  sus- 
pended while  it  lasts ;  and  unless  they  are  waived  by  the  parties, 
or  new  and  repugnant  stipulations  are  made,  they  revive  in  their 
operation  at  the  return  of  peace. 

A  majority  of  the  Court  is  of  opinion,  that  judgment  upon 
this  special  verdict  ought  to  be  given  for  the  plaintiffs,  which 
opinion  is  to  be  certified  to  the  Circuit  Court. 

Certificate  for  the  plaintiffs. 


TECHT  v.  HUGHES.  403 

SARA  E.  TECHT,  Respondent  v.  ELIZABETH  L.  HUGHES, 

Appellant. 

COUBT  OF  APPEAM  OF  NEW  YOBK.     1920. 
229  New  York,  222. 

Appeal,  by  permission,  from  a  judgment  of  the  Appellate  Di- 
vision of  the  Supreme  Court  in  the  first  judicial  department, 
entered  January  30,  1920,  affirming  an  interlocutory  judgment 
in  favor  of  plaintiff  entered  upon  a  decision  of  the  court  on 
trial  at  Special  Term  in  an  action  for  partition  of  real  property. 

The  following  question  was  certified:  "Has  the  plaintiff  here- 
in an  estate  of  inheritance  in  the  real  property  sought  to  be 
partitioned  in  this  action  ? "  .  .  . 

CARDOZO,  J.  James  J.  Hannigan,  a  citizen  of  the  United 
States,  died  intestate  on  December  27,  1917,  seized  in  fee  simple 
of  real  estate  in  the  city  of  New  York.  Two  daughters,  the 
plaintiff,  Sara  E.  Techt,  and  the  defendant,  Elizabeth  L.  Hughes, 
survived  him.  In  November,  1911,  the  plaintiff  became  the  wife 
of  Frederick  E.  Techt,  a  resident  of  the  United  States,  but  a 
citizen  of  Austria-Hungary.  On  December  7,  1917,  twenty  days 
before  the  death  of  plaintiff's  father,  war  was  declared  between 
Austria-Hungary  and  the  United  States.  The  record  contains  a 
concession  that  neither  the  plaintiff  nor  her  husband  has  been 
interned,  nor  has  the  loyalty  of  either  been  questioned  by  the 
government  of  state  or  nation,  and  that  both,  remaining  residents 
of  the  United  States,  have  kept  the  peace  and  obeyed  the  laws. 
The  plaintiff's  capacity  on  December  27,  1917,  to  acquire  title 
by  descent  is  the  question  to  be  determined.  .  .  . 

The  plaintiff  is  indisputably  an  alien.  Congress  has  enacted 
that  "any  American  woman  who  marries  a  foreigner  shall  take 
the  nationality  of  her  husband"  (Act  of  March  2,  1907,  ch. 
2534,  34  Stat.  1229).  .  .  .  Marriage  to  an  alien  is  voluntary 
expatriation.  The  plaintiff  is  in  the  same  position  as  if  letters 
of  naturalization  had  been  issued  to  her  in  Austria.  She  is  in 
the  same  position  as  her  husband.  She  is  without  capacity  to 
inherit  unless  statute  or  treaty  has  removed  the  disability. 

Both  statute  and  treaty  are  invoked  in  her  behalf.  The  stat- 
ute says  that  "a  citizen  of  the  United  States  is  capable  of  hold- 
ing real  property  within  this  state,  and  of  taking  the  same  by 
descent,  devise  or  purchase",  and  that  "alien  friends  are  em- 


404    BELLIGERENT  RELATIONS  OF  STATES. 

powered  to  take,  hold,  transmit  and  dispose  of  real  property 
within  this  state  in  the  same  manner  as  native  born  citizens,  and 
their  heirs  and  devisees  take  in  the  same  manner  as  citizens" 
(Real  Prop.  Law,  sec.  10,  as  amended  by  L.  1913,  ch.  152 ;  .Consol. 
Laws,  chap.  50) .  Alien  enemies,  therefore,  have  such  rights  and 
such  only  as  were  theirs  at  common  law.  The  treaty  says  that 
"where,  on  the  death  of  any  person  holding  real  property,  or 
property  not  personal,  within  the  territories  of  one  party,  such 
real  property  would,  by  the  laws  of  the  land,  descend  on  a 
citizen  or  subject  of  the  other,  were  he  not  disqualified  by  the 
laws  of  the  country  where  such  real  property  is  situated,  such 
citizen  or  subject  shall  be  allowed  a  term  of  two  years  to  sell  the 
same ;  which  term  may  be  reasonably  prolonged,  according  to 
circumstances;  and  to  withdraw  the  proceeds  thereof,  without 
molestation,  and  exempt  from  any  other  charges  than  those 
which  may  be  imposed  in  like  cases  upon  the  inhabitants  of  the 
country  from  which  such  proceeds  may  be  withdrawn"  (Art.  II 
of  Convention  between  United  States  and  Austria,  concluded 
May  8,  1848,  and  proclaimed  October  23,  1850;  9  Stat.  944). 

[The  learned  judge  decided,  contrary  to  the  decisions  of  the 
lower  tribunals  reported  in  176  N.  Y.  S.  356  and  177  N.  Y.  S. 
420,  that  since  the  plaintiff  was  a  subject  of  a  foreign  state  at 
war  with  the  United  States,  she  must  be  an  alien  enemy,  and 
hence  unable,  under  the  New  York  statute,  to  receive  an  inheri- 
tance of  land.] 

The  support  of  the  statute  failing,  there  remains  the  question 
of  the  treaty.  The  treaty,  if  in  force,  is  the  supreme  law  of  the 
land  (U.  S.  Const,  art.  6)  and  supersedes  all  local  laws  incon- 
sistent with  its  terms.  .  .  . 

The  effect  of  war  upon  the  existing  treaties  of  belligerents  is 
one  of  the  unsettled  problems  of  the  law.  The  older  writers 
sometimes  said  that  treaties  ended  ipso  facto  when  war  came  (3 
Phillimore  Int.  L.  794).  The  writers  of  our  own  time  reject 
these  sweeping  statements  (2  Oppenheim,  Int.  L.  sec.  99 ;  Hall, 
Int.  L.  398,  401;  Fiore,  Int.  L.  (Borchard's  Transl.)  sec.  845). 
International  law  today  does  not  preserve  treaties  or  annul  them 
regardless  of  the  effects  produced.  It  deals  with  such  problems 
pragmatically,  preserving  or  annuling  as  the  necessities  of  war 
exact.  It  establishes  standards,  but  it  does  not  fetter  itself  with 
rules.  When  it  attempts  to  do  more,  it  finds  that  there  is  neither 
unanimity  of  opinion  nor  uniformity  of  practice.  "The  whole 


TECHT  v.  HUGHES.  405 

question  remains  as  yet  unsettled"  (Oppenheim,  supra}.  This 
does  not  mean,  of  course,  that  there  are  not  some  classes  of 
treaties  about  which  there  is  general  agreement.  Treaties  of 
alliance  fall.  Treaties  of  boundary  or  cession,  "  dispositive "  or 
"transitory"  conventions,  survive  (Hall,  Int.  L.  pp.  398,  401; 
Westlake,  Int.  L.  II,  34;  Oppenheim,  supra}.  So,  of  course,  do 
treaties  which  regulate  the  conduct  of  hostilities  (Hall,  supra; 
5  Moore  Dig.  Int.  L.  372 ;  Society  for  Propagation  of  the  Gospel 
v.  Town  of  New  Haven,  8  Wheat.  464,  494).  Intention  in  such 
circumstances  is  clear.  These  instances  do  not  represent  distinct 
and  final  principles.  They  are  illustrations  of  the  same  prin- 
ciple. They  are  applications  of  a  standard.  When  I  ask  what 
the  principle  or  standard  is,  and  endeavor  to  extract  it  from  the 
long  chapters  in  the  books,  I  get  this,  and  nothing  more,  that 
provisions  compatible  with  a  state  of  hostilities,  unless  expressly 
terminated,  will  be  enforced,  and  those  incompatible  rejected. 
"Treaties  lose  their  efficacy  in  war  only  if  their  execution  is  in- 
compatible with  war.  Les  traites  ne  perdent  leur  efficacite  en 
temps  de  guerre  que  si  leur  execution  est  incompatible  avec  la 
guerre  elle-meme"  (Bluritschli,  Droit  International  Codifie,  sec. 
538).  That  in  substance  was  Kent's  view,  here  as  often  in  ad- 
vance of  the  thought  of  his  day.  ' '  All  those  duties  of  which  the 
exercise  is  not  necessarily  suspended  by  the  war,  subsist  in  their 
full  force.  The  obligation  of  keeping  faith  is  so  far  from  ceasing 
in  time  of  war,  that  its  efficacy  becomes  increased,  from  the 
increased  necessity  of  it"  (1  Kent,  Comm.  p.  176).  That,  also, 
more  recently  is  the  conclusion  embodied  by  the  Institute  of  In- 
ternational Law  in  the  rules  voted  at  Christiania  in  1912  which 
denned  the  effect  of  war  on  International  Conventions.  In  these 
rules,  some  classes  of  treaties  are  dealt  with  specially  and  apart. 
Treaties  of  alliance,  those  which  establish  a  protectorate  or  a 
sphere  of  influence,  and  generally  treaties  of  a  political  nature, 
are,  it  is  said,  dissolved.  Dissolved,  too,  are  treaties  which  have 
relation  to  the  cause  of  war.  But  the  general  principle  is  de- 
clared that  treaties  which  it  is  reasonably  practicable  to  execute 
after  the  outbreak  of  hostilities,  must  be  observed  then  as  in  the 
past.  The  belligerents  are  at  liberty  to  disregard  them  only  to 
the  extent  and  for  the  time  required  by  the  necessities  of  war. 
"Les  traites  restes  en  vigeur  et  dont  I' execution  demeure,  malgr'e 
les  hostilites,  pratiquement  possible,  doivent  etre  observes 
comme  par  le  passe.  Les  Etats  belligerents  ne  peuvent  s'en 
dispenser  que  dans  la  mesure  et  pour  le  temps  commandos  par 


£06         BELLIGERENT  RELATIONS  OF  STATES. 

tes  ntcessites  de  la  guerre"  (Institut  de  Droit  International, 
Annuaire,  1912,  p.  648 ;  Scott,  Resolutions  of  the  Institute  of 
Int.  Law,  p.  172.  Cf.  Hall,  Int.  Law  (7th  ed.),  399;  2  Westlake, 
Int.  L.  p.  35;  2  Oppenheim,  Int.  L.  sec.  99,  276). 

This,  I  think,  is  the  principle  which  must  guide  the  judicial 
department  of  the  government  when  called  upon  to  determine 
during  the  progress  of  a  war  whether  a  treaty  shall  be  observed 
in  the  absence  of  some  declaration  by  the  political  departments 
of  the  government  that  it  has  been  suspended  or  annulled.  A 
treaty  has  a  twofold  aspect.  In  its  primary  operation,  it  is  a 
compact  between  independent  states.  In  its  secondary  opera- 
tion, it  is  a  source  of  private  rights  for  individuals  within 
states  (Hea(I  Money  Cases,  112  U.  S.  580,  598).  Granting  that 
the  termination  of  the  compact  involves  the  termination  of  the 
rights,  it  does  not  follow  because  there  is  a  privilege  to  rescind 
that  the  privilege  has  been  exercised.  The  question  is  not  what 
states  may  do  after  war  has  supervened,  and  this  without  breach 
of  their  duty  as  members  of  the  society  of  nations.  The  question 
is  what  courts  are  to  presume  that  they  have  done.  "Where 
the  department  authorized  to  annul  a  voidable  treaty  shall  deem 
it  most  conducive  to  the  national  interest  that  it  should  longer 
continue  to  be  obeyed  and  observed,  no  right  can  be  incident  to 
the  judiciary  to  declare  it  void  in  a  single  instance"  (Jay  Ch. 
J.,  in  Jones  v.  Walker,  2  Paine,  688,  701.  Cf.  The  Legal  Nature 
of  Treaties,  vol.  10,  American  Journal  of  Int.  Law  (1916),  pp. 
721,  722).  President  and  senate  may  denounce  the  treaty,  and 
thus  terminate  its  life.  Congress  may  enact  an  inconsistent  rule, 
which  will  control  the  action  of  the  courts  (Fong  Yue  Ting  v. 
U.  S.,  149  U.  S.  698).  The  treaty  of  peace  itself  may  set  up 
new  relations,  and  terminate  earlier  compacts  either  tacitly  or 
expressly.  The  proposed  treaties  with  Germany  and  Austria 
give  the  victorious  powers  the  privilege  of  choosing  the  treaties 
which  are  to  be  kept  in  force  or  abrogated.  But  until  some  one 
of  these  things  is  done,  until  some  one  of  these  events  occurs, 
while  war  is  still  flagrant,  and  the  will  of  the  political  depart- 
ments of  the  government  unrevealed,  the  courts,  as  I  view  their 
function,  play  a  humbler  and  more  cautious  part.  It  is  not  for 
them  to  denounce  treaties  generally,  en  &Zoc.  Their  part  it  is, 
as  one  provision  or  another  is  involved  in  some  actual  contro- 
versy before  them,  to  determine  whether,  alone,  or  by  force  of 
connection  with  an  inseparable  scheme,  the  .provision  is  incon- 
sistent with  the  policy  or  safety  of  the  nation  in  the  emergency 


TECHT  v.  HUGHES.  407 

of  war,  and  hence  presumably  intended  to  be  limited  to  time  of 
peace.  The  mere  fact  that  other  portions  of  the  treaty  are  sus- 
pended or  even  abrogated  is  not  conclusive.  The  treaty  does  not 
fall  in  its  entirety  unless  it  has  the  character  of  an  indivisible 
act.  "Le  traite  tornbe  pour  le  tout  quand  il  presente  le  caractere 
d'um  acte  indivisible"  (Rules  of  the  Institute  of  Int.  L.  supra}. 
To  determine  whether  it  has  this  character,  it  is  not  enough  to 
consider  its  name  or  label.  No  general  formula  suffices.  We 
must  consult  in  each  case  the  nature  and  purpose  of  the  specific 
articles  involved.  "II  faut.  .  .  .  examiner  dans  chaque  cos, 
si  la  guerre  constitue  par  sa  nature  meme  un  obstacle  a  l'execu~ 
tion  du  traite"  (Bluntschli,  supra}. 

I  find  nothing  incompatible  with  the  policy  of  the  government, 
with  the  safety  of  the  nation,  or  with  the  maintenance  of  the 
war  in  the  enforcement  of  this  treaty  so  as  to  sustain  the  plain- 
iff 's  title.  We  do  not  confiscate  the  lands  or  goods  of  the  stranger 
within  our  gates.  If  we  permit  him  to  remain,  he  is  free  during 
good  behavior  to  buy  property  and  sell  it  (Trading  with  Enemy 
Act  of  Oct.  6,  1917;  40  St.  411,  ch.  106).  He  is  to  be  "undis- 
turbed in  the  peaceful  pursuit"  of  his  life  and  occupation,  and 
"accorded  the  consideration  due  to  all  peaceful  and  law-abiding 
persons"  (President's  Proclamation  of  Dec.  11/1917).  If  we 
require  him  to  depart,  we  assure  to  him,  for  the  recovery,  dis- 
posal and  removal  of  his  goods  and  effects  and  for  his  departure, 
the  full  time  stipulated  by  any  treaty  then  in  force  between  the 
United  States  and  the  hostile  nation  of  which  he  is  a  subject; 
and  where  no  such  treaty  is  in  force,  such  time  as  may  be  de- 
clared by  the  President  to  be  consistent  with  the  public  safety 
and  the  dictates  of  humanity  and  national  hospitality  (U.  S.  R. 
S.  sec.  4068,  re-enacting  the  act  of  July  6,  1798).  A  public 
policy  not  outraged  by  purchase  will  not  be  outraged  by 
inheritance.  The  plaintiff  is  a  resident;  but  even  if  she  were  a 
non-resident,  and  were  within  the  hostile  territory,  the  policy 
of  the  nation  would  not  divest  her  of  the  title  whether  acquired 
before  the  war  or  later.  Custody  would  then  be  assumed  by 
the  alien  property  custodian.  The  proceeds  of  the  property,  in 
the  event  of  sale,  would  be  kept  within  the  jurisdiction.  Title, 
however,  would  be  unchanged,  in  default  of  the  later  exercise 
by  Congress  of  the  power  of  confiscation  (40  Stat.  ch.  106, 
pp.  416,  424),  now  seldom  brought  into  play  in  the  practice  of 
enlightened  nations  (2  Westlake,  Int.  L.  46,  47;  Brown  v.  U.  S., 
8  Cranch,  110).  Since  the  argument  of  this  appeal,  Congress 


408    BELLIGERENT  RELATIONS  OF  STATES. 

has  already  directed,  in  advance  of  any  treaty  of  peace,  that 
property  in  the  hands  of  the  custodian  shall  be  returned  in  cer- 
tain, classes  of  cases  to  its  owners,  and  in  particular  where  the 
owner  is  a  woman  who  at  the  time  of  her  marriage  was  a  native- 
born  citizen  of  the  United  States  and  prior  to  April  6,  1917,  inter- 
married with  a  subject  or  citizen  of  Germany  or  Austria-Hun- 
gary (Act  of  June  5,  1920,  amending  sec.  9  of  the  act  of  Oct. 
6,  1917).  It  follows  that  even  in  its  application  to  aliens  in 
hostile  territory,  the  maintenance  of  this  treaty  is  in  harmony 
with  the  nation's  policy  and  consistent  with  the  nation's  wel- 
fare. To  the  extent  that  there  is  conflict  between  the  treaty  and 
the  statute  (40  Stat.  ch.  106),  we  have  the  same  situation  that 
arises  whenever  there  is  an  implied  repeal  of  one  law  by  another. 
To  the  extent  that  they  are  in  harmony,  both  are  still  in  force. 
There  is  in  truth  no  conflict  here  except  in  points  of  detail.  In 
fundamental  principle  and  purpose,  the  treaty  remains  un- 
touched by  later  legislation.  In  keeping  it  alive,  we  uphold  the 
policy  of  the  nation,  revealed  in  acts  of  Congress  and  procla- 
mations of  the  President,  "to  conduct  ourselves  as  belligerents  in 
a  high  spirit  of  right  and  fairness"  (President  Wilson's  Ad- 
dress to  Congress,  April  2,  1917;  Scott,  Diplomatic  Correspon- 
dence between  United  States  and  Germany,  p.  324),  without 
hatred  of  race  and  without  taint  of  self-seeking. 

I  do  not  overlook  the  statements  which  may  be  found  here 
and  there  in  the  works  of  authors  of  distinction  (Hall,  supra; 
Halleck  Int.  L.  (4th  ed.)  314;  Wheaton,  Int.  L.  (5th  ed.)  377) 
that  treaties  of  commerce  and  navigation  are  to  be  ranked  in  the 
class  of  treaties  which  war  abrogates  or  at  least  suspends.  Com- 
merce is  friendly  intercourse.  Friendly  intercourse  between  na- 
tions is  impossible  in  war.  Therefore,  treaties  regulating  such 
intercourse  are  not  operative  in  war.  But  stipulations  do  not 
touch  commerce  because  they  happen  to  be  embodied  in  a  treaty 
which  is  styled  one  to  regulate  or  encourage  commerce.  We 
must  be  on  our  guard  against  being  misled  by  labels.  Blunt- 
schli's  warning,  already  quoted,  reminds  us  that  the  nature  and 
not  the  name  of  covenants  determines  whether  they  shall  be 
disregarded  or  observed.  There  is  a  line  of  division,  funda- 
mental in  importance,  which  separates  stipulations  touching  com- 
merce between  nations  from  those  touching  the  tenure  of  land 
within  the  territories  of  nations  (Cf.  The  Convention  "as  to 
tenure  and  disposition  of  real  and  personal  property"  between 
the  U.  S.  &  Great  Britain  dated  March  2,  1899).  Restrictions 


TECHT  v.  HUGHES.  409 

upon  ownership  of  land  by  aliens  have  a  history  all  their  own, 
unrelated  altogether  to  restrictions  upon  trade  (Kershaw  v.  Kel- 
sey,  supra;  Fairfax  v.  Hunter,  supra).  When  removed,  they 
cease  to  exist  for  enemies  as  well  as  friends,  unless  the  statute  re- 
moving them  enforces  a  distinction  (Kershaw  v.  Kelsey,  Fairfax 
v.  Hunter,  supra).  More  than  that,  the  removal,  when  effected 
by  treaty,  gives  reciprocal  privileges  to  the  subjects  of  each  state, 
and  is  thus  of  value  to  one  side  as  much  as  to  the  other.  For 
this  reason,  the  inference  is  a  strong  one,  as  was  pointed  out  by 
the  Master  of  the  Rolls  in  Sutton  v.  Sutton  (1  Russ  &  M.  664, 
675)  that  the  privileges,  unless  expressly  revoked,  are  intended 
to  endure  (Cf.  2  Westlake,  p.  33;  also  Halleck,  Int.  L.,  supra). 
There,  as  in  Society  for  the  Propagation  of  the  Gospel  v.  Town 
of  New  Haven  (8  Wheat.  464,  494),  the  treaty  of  1794  between 
the  United  States  and  England  protecting  the  citizens  of  each 
in  the  enjoyment  of  their  landed  property,  was  held  not  to  have 
been  abrogated  by  the  war  of  1812.  Undoubtedly  there  is  a  dis- 
tinction between  those  cases  and  this  in  that  there  the  rights  had 
become  vested  before  the  outbreak  of  the  war.  None  the  less, 
alike  in  reasoning  and  in  conclusion,  they  have  their  value  and 
significance.  If  stipulations  governing  the  tenure  of  land  sur- 
vive the  stress  of  war  though  contained  in  a  treaty  which  is 
described  as  one  of  amity,  it  is  not  perceived  why  they  may  not 
also  survive  though  contained  in  a  treaty  which  is  described  as 
one  of  commerce.  In  preserving  the  right  of  inheritance  for 
citizens  of  Austria  when  the  land  inherited  is  here,  we  preserve 
the  same  right  for  our  citizens  when  the  land  inherited  is  there 
(Brown  v.  U.  S.,  8  Cranch  110,  129).  Congress  has  not  yet  com- 
manded us,  and  the  exigencies  of  war,  as  I  view  them,  do  not 
constrain  us,  to  throw  these  benefits  away. 

No  one  can  study  the  vague  and  wavering  statements  of 
treatise  and  decision  in  this  field  of  international  law  with  any 
feeling  of  assurance  at  the  end  that  he  has  chosen  the  right  path. 
One  looks  in  vain  either  for  uniformity  of  doctrine  or  for  scien- 
tific accuracy  of  exposition.  There  are  wise  cautions  for  the 
statesman.  There  are  few  precepts  for  the  judge.  All  the  more, 
in  this  uncertainty,  I  am  impelled  to  the  belief  that  until  the 
political  departments  have  acted,  the  courts,  in  refusing  to  give 
effect  to  treaties,  should  limit  their  refusal  to  the  needs  of  the 
occasion ;  that  they  are  not  bound  by  any  rigid  formula  to  nulli- 
fy the  whole  or  nothing;  and  that  in  determining  whether  this 
treaty  survived  the  coming  of  war,  they  are  free  to  make  choice 


410  NOTE. 

of  the  conclusion  which  shall  seem  the  most  in  keeping  with  the 
traditions  of  the  law,  the  policy  of  the  statutes,  the  dictates  of 
fair  dealing,  and  the  honor  of  the  nation. 

The  judgment  should  be  affirmed  with  costs,  and  the  question 
certified  answered  in  the  affirmative. 

HISCOCK,  Ch.  J.,  CHASE,  HOGAN,  MCLAUGHLIN  and  CRANE,  JJ., 
concur;  ELKUS,  J.,  concurs  in  result. 

Judgment  affirmed. 

NOTE. — See  The  Frau  Ilsabe  (1801),  4  C.  Robinson,  63;  Carneal  v. 
Banks  (1825),  10  Wheaton,  181;  Button  v.  Sutton  (1830),  1  Russel  & 
Mylne,  663.  As  to  the  nature  of  the  treaty  of  peace  of  1783  between 
Great  Britain  and  the  United  States,  see  M'llvaine  v.  Cox's  Lessee 
(1808),  4  Cranch,  209;  Harcourt  v.  Gaillard  (1827),  12  Wheaton,  523. 
The  character  of  the  treaty  of  1783  played  an  important  part  in  the 
American  argument  in  the  North  Atlantic  Fisheries  Arbitration.  For 
further  discussion  of  the  subject,  see  Crandall,  Treaties — Their  Making 
and  Enforcement,  sec.  181;  Butler,  The  Treaty-Making  Power  of  the 
United  States;  Wheaton  (Dana),  342,  (Phillipson),  368;  Pitt  Cobbett, 
Cases  and  Opinions,  II.  35;  Hyde,  II.  91;  Bonfils  (Fauchille),  sec.  1049; 
Moore,  Digest,  V.  sec.  779,  780. 


Mil 


CHAPTER  XII. 
ENEMY  CHARACTER. 

SECTION  1.    NATURAL  PERSONS. 
THE  HARMONY. 

HIGH  COUBT  OF  ADMIRALTY  OF  ENGLAND.    1800. 
2  C.  Robinson,  322. 

This  was  one  of  several  American  vessels  in  which  a  claim  had 
been  reserved  for  part  of  the  cargo,  on  further  proof  to  be  made 
of  the  national  character  of  G.  W.  Murray,  who  appeared  in  the 
original  case,  as  a  partner  of  a  house  of  trade  in  America,  but 
personally  resident  in  France;  restitution  had  been  decreed  in 
the  several  claims  to  the  house  of  trade  in  America,  with  a 
reservation  of  the  share  of  this  partner.  ...  [It  appeared 
in  evidence  that  G.  "W.  Murray,  an  American  citizen,  had  gone 
to  France  in  1794  to  dispose  of  a  cargo  belonging  to  his  firm. 
He  remained  a  year,  and  after  a  visit  of  about  six  months  to 
America,  he  returned  to  France  and  four  years  later  was  still 
in  that  country.  The  court  construed  this  as  a  continuous  res- 
idence of  six  years  in  France.  The  claimant  argued  that  these 
facts  did  not  show  a  domicile  in  France.] 

SIR  W.  SCOTT  [LORD  STOWELL] — This  is  a  question  which 
arises  on  several  parcels  of  property  claimed  on  behalf  of  G.  "W. 
Murray ;  and  it  is  in  all  of  them  a  question  of  residence  or  dom- 
icil,  which  I  have  often  had  occasion  to  observe,  is  in  itself  a 
question  of  considerable  difficulty,  depending  on  a  great  variety 
of  circumstances,  hardly  capable  of  being  defined  by  any  general 
precise  rules :  The  active  spirit  of  commerce  now  abroad  in  the 
world,  still  farther  increases  this  difficulty  by  increasing  the 
variety  of  local  situations,  in  which  the  same  individual  is  to  be 
found  at  no  great  distance  of  time ;  and  by  that  sort  of  extended 

411 


412  ENEMY  CHARACTER. 

circulation,  if  I  may  so  call  it,  by  which  the  same  transaction 
communicates  with  different  countries,  as  in  the  present  cases,  in 
which  the  same  trading  adventures  have  their  origin  (perhaps) 
in  America,  travel  to  France,  from  France  to  England,  from 
England  back  to  America  again,  without  enabling  us  to  assign 
accurately  the  exact  legal  effect  of  the  local  character  of  every 
particular  portion  of  this  divided  transaction. 

In  deciding  such  cases,  the  necessary  freedom  of  commerce  im- 
poses likewise  the  duty  of  a  particular  attention  and  delicacy; 
and  strict  principle  of  law  must  not  be  pressed  too  eagerly 
against  it;  and  I  have  before  had  occasion  to  remark,  that  the 
particular  situation  of  America,  in  respect  to  distance,  seems  still 
more  particularly  to  entitle  the  merchants  of  that  country  to 
some  favourable  distinctions.  They  live  at  a  great  distance  from 
Europe;  they  have  not  the  same  open  and  ready  constant  cor- 
respondence with  individuals  of  the  several  nations  of  Europe, 
that  these  persons  have  with  each  other;  they  are  on  that  very 
account  more  likely  to  have  their  mercantile  confidence  in 
Europe  abused,  and  therefore  to  have  more  frequent  calls  for  a 
personal  attendance  to  their  own  concerns;  and  it  is  to  be  ex- 
pected that  when  the  necessity  of  their  affairs  calls  them  across 
the  Atlantic,  they  should  make  rather  a  longer  stay  in  the  coun- 
try where  they  are  called,  than  foreign  merchants  who  step  from 
a  neighboring  country  in  Europe,  to  which  every  day  offers  a 
convenient  opportunity  of  return.  -.  .  . 

Of  the  few  principles  that  can  be  laid  down  generally,  I  may 
venture  to  hold,  that  time  is  the  grand  ingredient  in  constituting 
domicil.  I  think  that  hardly  enough  is  attributed  to  its  effects; 
in  most  cases  it  is  unavoidably  conclusive ;  it  is  not  unfrequently 
said,  that  if  a  person  comes  only  for  a  special  purpose,  that 
shall  not  fix  a  domicil.  This  is  not  to  be  taken  in  an  unqualified 
latitude,  and  without  some  respect  had  to  the  time  which  such  a 
purpose  may  or  shall  occupy;  for  if  the  purpose  be  of  a  nature 
that  may,  probably,  or  does  actually  detain  the  person  for  a 
great  length  of  time,  I  cannot  but  think  that  a  general  residence 
might  grow  upon  the  special  purpose.  A  special  purpose  may 
lead  a  man  to  a  country,  where  it  shall  detain  him  the  whole  of 
his  life.  A  man  comes  here  to  follow  a  lawsuit ;  it  may  happen, 
and  indeed  is  often  used  as  a  ground  of  vulgar  and  unfounded 
reproach,  (unfounded  as  a  matter  of  just  reproach  though  the 
fact  may  be  true),  on  the  laws  of  this  country,  that  it  may  last 
as  long  as  himself.  Some  suits  are  famous  in  our  juridical  his- 


THE  HAKMONY.  413 

tory  for  having  even  outlived  generations  of  suitors.  I  cannot 
but  think  that  against  such  a  long  residence,  the  plea  of  an  orig- 
inal special  purpose  could  not  be  averred;  it  must  be  inferred 
in  such  a  case,  that  other  purposes  forced  themselves  upon  him 
and  mixed  themselves  with  his  original  design  and  impressed 
upon  him  the  character  of  the  country  where  he  resided.  Sup- 
pose a  man  comes  into  a  belligerent  country  at  or  before  the  be- 
ginning of  a  war;  it  is  certainly  reasonable  not  to  bind  him  too 
soon  to  an  acquired  character,  and  to  allow  him  a  fair  time  to 
disengage  himself;  but  if  he  continues  to  reside  during  a  good 
part  of  the  war,  contributing,  by  payment  of  taxes,  and  other 
means,  to  the  strength  of  that  country,  I  am  of  opinion,  that  he 
could  not  plead  his  special  purpose  with  any  effect  against  the 
rights  of  hostility.  If  he  could,  there  would  be  no  sufficient 
guard  against  the  fraud  and  abuses  of  masked,  pretended,  orig- 
inal, and  sole  purposes  of  a  long  continued  residence.  There  is 
a  time  which  will  estop  such  a  plea;  no  rule  can  fix  the  time  a 
priori,  but  such  a  time  there  must  be. 

In  proof  of  the  efficacy  of  mere  time,  it  is  not  impertinent  to 
remark,  that  the  same  quantity  of  business,  which  would  not  fix 
a  domicil  in  a  certain  space  of  time,  would  nevertheless  have 
that  effect,  if  distributed  over  a  large  space  of  time.  Suppose  an 
American  comes  to  Europe,  with  six  contemporary  cargoes,  of 
which  he  had  the  present  care  and  management,  meaning  to 
return  to  America  immediately;  they  would  form  a  different 
case  from  that,  of  the  same  American,  coming  to  any  particular 
country  of  Europe,  with  one  cargo,  and  fixing  himself  there,  to 
receive  five  remaining  cargoes,  one  in  each  year  successively.  I 
repeat,  that  time  is  the  great  agent  in  this  matter;  it  is  to  be 
taken  in  a  compound  ratio,  of  the  time  and  the  occupation,  with 
a  great  preponderance  on  the  article  of  time :  be  the  occupation 
what  it  may,  it  cannot  happen,  but  with  few  exceptions,  that 
mere  length  of  time  shall  not  constitute  a  domicil.  .  .  .  [The 
learned  judge  here  makes  an  elaborate  examination  of  the  evi- 
dence as  to  Murray's  residence  in  France,  and  finds  that  the 
facts  show  a  domicil  established  in  that  country.] 

I  feel  myself  under  the  necessity  ...  of  condemning  his 
share  of  the  property  in  these  several  cargoes. 


4J.4  ENEMY  CHARACTER. 

THE  INDIAN  CHIEF. 

HIGH  COUBT  OF  ADMIRALTY  OF  GREAT  BRITAIN.    1801. 
3  C.  Robinson,  12. 

[The  claimant  Johnson  was  an  American  citizen  long  resident 
in  London.  While  the  vessel  in  question  was  on  a  voyage  from 
Batavia,  a  Dutch  colony,  to  Hamburgh,  her  owner  Johnson  de- 
termined to  return  to  America,  and  did  actually  leave  England 
September  9,  1797.  The  vessel  was  captured  November  1,  1797. 
The  material  point  to  be  determined  was  whether  or  not  Johnson 
had  lost  his  British  domicile.] 

SIR  "W.  SCOTT  [LORD  STOWELL]  : — This  is  the  case  of  a  ship 
seized  in  the  port  of  Cowes,  where  she  came  to  receive  orders 
respecting  the  delivery  of  a  cargo  taken  in  at  Batavia,  with  a 
professed  original  intention  of  proceeding  to  Hamburgh,  but  on 
coming  into  this  country  for  particular  orders,  the  ship  and 
cargo  were  seized  in  port.  It  does  not  appear  clear  to  the  Court, 
that  it  might  not  be  a  cargo  intended  to  be  delivered  in  this 
country,  as  many  such  cargoes  have  been,  under  the  Dutch  prop- 
erty act:  I  mention  this  to  meet  an  observation  that  has  been 
thrown  out,  "that  it  is  doubtful  whether  the  ship  might  not  be 
confiscable  on  the  ground  of  being  a  neutral  ship  coming  from  a 
colony  of  the  enemy,  not  to  her  own  ports  or  the  ports  of  this 
country. ' '  I  cannot  assume  it  as  a  demonstrated  fact  in  the  case, 
that  the  cargo  was  to  be  delivered  at  Hamburgh.  The  vessel 
sailed  in  1795,  and  as  an  American  ship  with  an  American  pass, 
and  all  American  documents;  but  nevertheless  if  the  owner 
really  resided  here,  such  papers  could  not  protect  his  vessel:  if 
the  owner  was  resident  in  England,  and  the  voyage  such  as  an 
English  merchant  could  not  engage  in,  an  American  residing 
here,  and  carrying  on  trade,  could  not  protect  his  ship  merely 
by  putting  American  documents  on  board;  his  interest  must 
stand  or  fall  according  to  the  determination  which  the  Court 
shall  make  on  the  national  character  of  such  a  person. 

There  are  two  positions  which  are  not  to  be  controverted ;  that 
Mr.  Johnson  is  an  American  generally  by  birth,  which  is  the  cir- 
cumstance that  first  impresses  itself  on  the  mind  of  the  Court; 
and  also  by  the  part  which  he  took  on  the  breaking  out  of  the 
American  war.  He  came  hither  when  both  countries  were  open 
to  him ;  but  on  the  breaking  out  of  hostilities,  he  made  his  elec- 


THE  INDIAN  CHIEF.  415 

tion  which  country  he  would  adhere  to,  and  in  consequence 
thereof  went  to  France.  .  .  .  He  came  however  to  this  coun- 
try in  1783,  and  engaged  in  trade,  and  has  resided  in  this 
country  till  1797;  during  that  time  he  was  undoubtedly  to  be 
considered  as  an  English  trader;  for  no  position  is  more  estab- 
lished than  this,  that  if  a  person  goes  into  another  country,  and 
engages  in  trade,  and  resides  there,  he  is,  by  the  law  of  nations, 
to  be  considered  as  a  merchant  of  that  country;  I  should  there- 
fore have  no  doubt  in  pronouncing  that  Mr.  Johnson  was  to  be 
considered  as  a  merchant  of  this  country,  at  the  time  of  sailing 
of  this  vessel  on  her  outward  voyage.  .  .  . 

Now  there  can  be  no  doubt  that  if  Mr.  Johnson  had  continued 
where  he  was  at  the  time  of  sailing,  if  he  had  remained  resident 
in  England,  it  must  be  considered  as  a  British  transaction ;  and 
therefore  a  criminal  transaction,  on  the  common  principle  that  it 
is  illegal  in  any  person  owing  an  allegiance,  though  temporary, 
to  trade  with  the  public  enemy.  But  it  is  pleaded  that  he  had 
quitted  this  country  before  the  capture,  and  that  he  had  done 
this  in  consequence  of  an  intention  he  had  formed  of  removing 
much  earlier,  but  that  he  had  been  prevented  by  obstacles  that 
obstructed  his  wish:  to  this  effect  the  letter  of  March,  1797  is 
exhibited,  which  must  have  been  preceded  by  private  corre- 
spondence, and  application  to  some  of  his  creditors.  It  does,  I 
think,  breathe  strong  expressions  of  intention,  and  of  an  ardent 
desire  to  get  over  the  restraint  that  alone  detained  him;  and  it 
affords  conclusive  reason  to  believe  that  if  he  had  been  a  free 
man,  and  at  liberty  to  go  where  he  pleased,  he  would  have  re- 
moved long  before ;  and  that  he  was  detained  here  as  a  hostage, 
as  he  describes  himself,  to  his  creditors,  on  motives  of  honor 
creditable  to  his  character.  On  the  9th  of  September  1797  he 
did  actually  retire ;  of  the  sincerity  of  his  quitting  this  country 
there  can  hardly  be  a  doubt  entertained ;  it  is  almost  impossible 
to  represent  stronger  or  more  natural  grounds  for  such  a  meas- 
ure ;  and  I  do  not  think  the  Court  runs  any  risk  of  encountering 
a  fraudulent  pretension,  put  forward  to  meet  the  circumstances 
of  the  moment,  without  anything  of  an  original  and  6ona  fide 
intention  at  the  bottom  of  it.  ... 

The  ship  arrives  a  few  weeks  after  his  departure,  and  taking 
it  to  be  clear,  that  the  national  character  of  Mr.  Johnson  as  a 
British  merchant  was  founded  in  residence  only,  that  it  was 
acquired  by  residence,  and  rested  on  that  circumstance  alone; 
it  must  be  held  that  from  the  moment  he  turns  his  back  on  the 


416  ENEMY  CHARACTER. 

country  where  he  has  resided,  on  his  way  to  his  own  country,  he 
was  in  the  act  of  resuming  his  original  character,  and  is  to  be 
considered  as  an  American:  The  character  that  is  gained  by 
residence  ceases  by  residence:  It  is  an  adventitious  character 
which  no  longer  adheres  to  him,  from  the  moment  that  he  puts 
himself  in  motion,  ~bona  fide,  to  quit  the  country,  sine  animo 
revertendi.  The  Courts  that  have  to  apply  this  principle,  have 
applied  it  both  ways,  unfavourably  in  some  cases,  and  favour- 
ably in  others.  This  man  had  actually  quitted  the  country. 
Stronger  was  the  case  of  Mr.  Curtissos;  he  was  a  British-born 
subject,  that  had  been  resident  in  Surinam  and  St.  Eustatius, 
and  had  left  those  settlements  with  an  intention  of  returning  to 
this  country;  but  he  had  got  no  farther  than  Holland,  the 
mother  country  of  those  settlements,  when  the  war  broke  out. 
It  was  determined  by  the  Lords  of  Appeal,  that  he  was  in  itinere, 
that  he  had  put  himself  in  motion,  and  was  in  pursuit  of  his 
native  British  character :  and  as  such,  he  was  held  to  be  entitled 
to  the  restitution  of  his  property.  So  here,  this  gentleman  was 
in  actual  pursuit  of  his  American  character ;  and,  I  think,  there 
can  be  no  doubt  that  his  native  character  was  strongly  and  sub- 
stantially revived,  not  occasionally,  nor  colourably,  for  the  mere 
purpose  of  the  present  claim;  and  therefore  I  shall  restore  the 
ship. 


THE  DERFFLINGER,  (No  1). 

BRITISH  PRIZE  COURT  FOB  EGYPT.     1916. 
1  British  and  Colonial  Prize  Cases,  386. 

CATOR,  P.  This  is  a  claim  made  by  Mr.  H.  E.  Wolf,  a  German 
subject,  for  the  release  of  a  number  of  cases  of  porcelain,  curios, 
and  other  private  effects,  consigned  by  him  from  Hong  Kong  to 
a  German  firm  of  forwarding  agents  in  Bremen,  who  had  in- 
structions to  send  them  to  Mr.  Wolf's  home  in  Stuttgart. 

Mr.  Wolf  is  employed  in  the  Chinese  Maritime  Customs  at 
Shanghai,  but  no  special  claim  is  made  on  account  of  his  em- 
ployment, and  we  are  to  deal  with  him  as  a  private  gentleman 
forming  part  of  the  German  community  in  Shanghai,  and  no 
doubt  registered  at  his  Consulate  as  a  German  subject  resident 
in  China.  His  affidavit  declares  and  emphasises  that  the  goods 


THE  DERFFLINGER  (NO.  1)  417 

in  question  are  his  private  effects  intended  for  private  use  in 
his  own  home  in  Germany. 

On  these  facts  counsel  for  the  claimant  has  made  a  very 
praise- worthy  effort  to  parry  the  claim  of  the  Crown  for  confisca- 
tion, and  has  cited  a  mass  of  authority  to  support  his  conten- 
tions. Put  shortly  his  argument  is  as  follows:  The  principle 
of  commercial  domicile  which  has  been  elaborated  in  our  Prize 
Courts  applies  to  private  residents  as  well  as  to  merchants. 
This  domicile  in  the  case  of  Mr.  Wolf  is  China.  China  is  a  neu- 
tral country  and  Mr.  Wolf  must  be  treated  as  a  neutral  by  the 
Prize  Court,  and  as  such  is  entitled  to  have  his  property  re- 
turned to  him  even  though  he  has  consigned  it  to  himself  in 
Germany.  .  .  . 

The  much-quoted  case  of  The  Indian  Chief  (1800),  3  C.  Rob. 
12,  1  Eng.  P.  C.  251,  decided  by  Lord  Stowell,  is  directly  in 
point.  We  are  concerned  only  with  the  second  part  of  the  judg- 
ment— a  part  which  unfortunately  has  not  found  a  place  in  the 
English  Prize  Cases.  The  question  turned  upon  the  position  of 
Europeans  in  Oriental  countries,  and  on  this  subject  Lord  Stow- 
ell says,  "In  the  East,  from  the  oldest  times,  an  immiscible  char- 
acter has  been  kept  up;  foreigners  are  not  admitted  into  the 
general  body  and  mass  of  the  society  of  the  nation;  they  con- 
tinue strangers  and  sojourners  as  all  their  fathers  were — 'Doris 
amara  suavn  non  intei~miscuit  undam';  not  acquiring  any  na- 
tional character  under  the  general  sovereignty  of  the  country, 
and  not  trading  under  any  recognized  authority  of  their  own 
original  country,  they  have  been  held  to  derive  their  present 
character  from  that  of  the  association  or  factory  under  w^hose 
protection  they  live  and  carry  on  their  trade."  (3  C.  Rob.,  at 
p.  29.) 

In  those  days  factories,  as  they  were  called,  still  flourished  in 
the  Orient.  A  factory  was  a  community  of  Europeans  estab- 
lished in  a  foreign  country  for  the  purpose  of  trade,  yet  owing 
no  allegiance  to  the  ruler  of  the  soil  and  not  much  controlled  by 
any  other.  Although  grouped  under  the  protection  of  one  flag, 
its  members  might  consist  of  traders  belonging  to  different  na- 
tions. An  Englishman,  for  instance,  might  attach  himself  to  a 
Dutch  factory,  and  if  he  did  so  his  trade  domicile  would  for 
the  purpose  of  a  British  Prize  Court  be  reckoned  Dutch.  Since 
that  time  the  grouping  has  undergone  a  change.  Communities 
which  in  those  days .  were  not  trading  under  any  recognized 
29  authority  of  their  own  original  country  have  now  sorted  them- 


418  ENEMY  CHARACTER. 

selves  out  into  communities  of  different  nations,  definitely  con~ 
trolled  by  their  home  Governments,  which  legislate  for  them  in 
virtue  of  rights  acquired  by  custom  or  definitely  conceded  by 
native  potentates.  The  trading  bond  has  given  way  to  one  of 
nationality.  But  allowing  for  this  difference,  the  words  of  Lord 
Stowell  are  just  as  applicable  in  these  days  as  they  were  more 
than  a  hundred  years  ago.  The  waters  of  Alpheus  still  flow 
undefiled,  and  where  European  Powers  enjoy  the  privilege  of 
ex-territorial  jurisdiction  their  subjects  never  lose  their  native 
character.  Each  community  continues  its  distinctive  existence, 
governed  by  its  own  consuls  and  subject  to  the  laws  of  its  mother 
country.  ...  There  still  exist  countries  where,  owing  to 
fundamental  differences  in  race  and  religion,  Europeans  do  not 
merge  in  the  general  life  of  the  native  inhabitants,  but  keep 
themselves  apart  in  separate  communities;  and  where  such  sep- 
aration is  sanctioned  by  the  exercise  of  ex-territorial  authority 
I  am  of  opinion  that  it  is  impossible  for  any  individual  to  ac- 
quire a  trade  domicile  other  than  that  of  the  country  to  which 
he  owes  allegiance. 

Mr.  Wolf  is  a  German  subject  and  a  member  of  the  German 
community  in  Shanghai,  and  his  domicile  for  the  purpose  of 
these  proceedings  must  be  taken  to  be  German.  His  goods  form 
part  of  the  cargo  of  an  enemy  ship  which  has  been  confiscated  to 
the  Crown,  and  they  must  be  condemned  in  like  manner.  There 
will  be  an  order  for  sale  in  the  usual  terms. 


THE  ANGLO-MEXICAN. 

JUDICIAL  COMMITTEE  OF  THE  PRIVY  COUNCIL  OF  GREAT  BRITAIN.    1917. 
Law  Reports  [1918]  A.  C.  422. 

Appeal  from  a  judgment  of  the  President  of  the  Admiralty 
Division  (in  Prize).  .  .  . 

LORD  PARKER  OF  WADDINGTON.  The  goods  in  respect  of  which 
this  appeal  arises  were  shipped  at  Savannah,  U.  S.  A.,  shortly 
before  the  outbreak  of  the  war,  on  the  British  steamship  Anglo- 
Mexican.  They  were  shipped  by  and  at  all  material  times  be- 
longed to  Reis  &  Co.,  a  German  firm  with  its  head  office  at 
Friedrichsfeld  in  Baden,  but  with  branch  offices  at  Boston,  U. 


THE  ANGLO-MEXICAN.  419 

S.  A.,  and  at  Salford  in  the  United  Kingdom.  The  firm  con- 
sisted of  four  partners,  Edwin  Reis  and  Lndwig  Reis,  German 
subjects  residing  and  carrying  on  the  firm's  business  at  Fried- 
richsfeld ;  K.  B.  Straus,  a  German  by  birth,  but  naturalized  and 
resident  in  the  United  Kingdom,  who  was  in  charge  of  the  Sal- 
ford  office;  and  the  respondent  Richard  Mayer,  also  a  German 
by  birth",  but  naturalized  and  resident  in  the  U.  S.  A.,  who  was 
in  charge  of  the  Boston  office.  Richard  Mayer's  interest  in  the 
partnership  concern  was  one-fifth  share.  The  President  has 
ordered  the  release  to  him  of  one-fifth  of  the  goods  in  question 
or  their  proceeds,  on  the  ground  that  he  was  a  neutral  subject 
domiciled  and  resident  in  a  neutral  country,  though  a  partner 
in  a  German  firm,  and  that  the  goods  were  shipped  before  the 
outbreak  of  the  war.  The  Crown  is  appealing  from  this  order. 

The  principles  which  ought  to  govern  cases  such  as  the  present 
are  not  wholly  free  from  doubt.  It  appears,  however,  reason- 
ably certain  that  the  question  whether  a  particulr  individual 
ought  to  be  regarded  as  an  enemy  or  otherwise  depends  prima 
facie  on  his  domicil,  and,  domicil  is,  according  to  international 
law,  a  matter  of  inference  from  residence.  Thus,  if  a  neutral 
subject  is  at  the  commencement  of  or  during  the  war  to  all  ap- 
pearance permanently  resident  in  an  enemy  country,  he  will  be 
regarded  as  an  enemy.  By  taking  up  his  permanent  residence 
in  a  country  other  than  that  of  his  birth,  he  submits  himself  to 
and  takes  the  benefit  of  the  laws  of  that  country,  and  in  effect 
becomes  one  of  its  subjects.  If,  therefore,  while  this  state  of 
things  continues,  goods  belonging  to  him  are  seized  as  prize, 
such  goods  will  prima  facie  be  treated  as  enemy  goods.  But  an 
acquired  domicil  may  be  abandoned,  and  if  prior  to  the  actual 
capture  the  owner  has  already  done  some  unequivocal  act  indi- 
cating an  abandonment  of  his  acquired  domicil  in  the  country  of 
the  enemy,  the  goods  will  prima  facie  be  treated  as  belonging 
to  a  neutral.  It  has  been  sometimes  urged  that  neutrals,  res- 
ident in  a  country  which  by  the  outbreak  of  hostilities  becomes 
an  enemy  country,  ought  to  be  allowed  a  reasonable  time  after 
such  outbreak  to  elect  whether  they  will  abandon  or  retain  their 
acquired  domicil.  This  point  was  discussed  in  The  Venus,  8 
Cranch,  253.  In  that  case  the  majority  of  the  judges  of  the  Su- 
preme Court  of  the  United  States  decided  against  allowing  any 
interval  for  election.  It  was  not,  they  thought,  desirable  that  a 
neutral  after  the  outbreak  of  hostilities  should  be  able  for  any 
interval,  however  short,  to  sit,  as  it  wrere,  on  the  fence  ready  to 


420  ENEMY  CHARACTER. 

come  down  on  either  side  according  as  it  might  prove  to  his  ad- 
vantage. The  English  authorities  are  not  conclusive  one  way  or 
the  other.  The  point  does  not,  however,  fall  to  be  determined  on 
this  appeal,  for  the  respondent  was  not  at  the  outbreak  of  hos- 
tilities permanently  resident  in  Germany.  His  domicil  was  in 
the  United  States. 

Again,  it  seems  clear  that  a  neutral  wherever  resident  may,  if 
he  owns  or  is  a  partner  in  a  house  of  business  trading  in  or  from 
an  enemy  country,  be  properly  deemed  an  enemy  in  respect  of 
his  property  or  interest  in  such  business.  He  acquires  by  virtue 
of  the  business  a  commercial  domicil  in  the  country  in  or  from 
which  the  business  is  carried  on,  and  this  commercial  domicil, 
though  it  does  not  affect  his  property  generally,  will  affect  the 
assets  of  the  business  house  or  his  interest  therein  with  an  enemy 
character.  'But  a  neutral  having  such  a  commercial  domicil  in 
a  country  which  becomes  an  enemy  country  on  the  outbreak  of 
hostilities  ought,  according  to  the  views  taken  by  British  Prize 
Courts,  to  be  allowed  a  reasonable  interval  during  which  he  may 
discontinue  or  dissociate  himself  from  the  business  in  question. 
If  he  has  done  this  prior  to  the  capture  at  sea  of  any  goods  be- 
longing to  the  business,  such  goods  or  his  interest  in  them  will 
not  be  confiscable.  If  he  has  not  done  this  prior  to  the  capture, 
but  the  Court  is  of  opinion  that  a  reasonable  interval  for  this 
purpose  had  not  then  already  elapsed,  the  Court  will  take  notice 
of  what  he  has  done  in  that  behalf  since  the  capture,  or  will  in 
a  proper  case  even  let  the  question  of  condemnation  stand  over 
to  enable  further  action  to  be  taken.  If,  on  the  other  hand,  he 
has  already  had  a  reasonable  opportunity  of  discontinuing  or 
dissociating  himself  from  the  business  in  the  enemy  country  and 
has  failed  to  take  advantage  of  it,  or  if  he  has  done  some  un- 
equivocal act  indicating  an  intention  to  continue  or  retain  his 
interest  in  such  business,  the  goods  or  his  interest  therein  will 
be  condemned  as  lawful  prize. 

It  may  happen  that  a  neutral  or  the  firm  in  which  he  is  a  part- 
ner has,  besides  the  house  of  business  in  the  enemy  country, 
branch  houses  in  other  countries.  In  such  a  case  nice  questions 
may  arise  as  to  whether  the  captured  goods  ought  properly  to 
be  regarded  as  appertaining  to  the  enemy  house  or  to  one  or 
other  of  the  branch  houses.  A  question  of  this  sort  came  before 
their  Lordships'  Board  in  the  case  of  The  Liitzow,  [1918]  A.  C. 
435,  in  which  judgment  is  about  to  be  given,  and  the  original 
claim  put  forward  on  the  respondent 's  behalf  in  the  present  case 


THE  ANGLO-MEXICAN.  421 

appears  to  have  been  framed  on  the  contention  that  the  goods 
now  in  question  appertained  to  the  American  or  to  the  English 
branch  of  the  business  of  Reis  &  Co.,  and  not  to  their  German 
branch.  Had  this  claim  been  made  out,  the  interest  therein  of 
the  respondent  would  not  have  been  confiscable  as  enemy  prop- 
erty. The  claim,  however,  in  this  form  was  abandoned  in  the 
Court  below,  it  being  admitted  that  the  goods  in  question  could 
not  be  regarded  otherwise  than  as  appertaining  to  the  German 
house. 

In  support  of  the  views  above  indicated  their  Lordships  refer 
to  The  Gerasimo,  11  Moo.  P.  C.  96,  where  Lord  Kingsdown,  in 
delivering  the  opinion  of  the  Board,  states  the  general  principle 
as  follows :  ' '  The  national  character  of  a  trader  is  to  be  decided 
for  the  purposes  of  the  trade  by  the  national  character  of  the 
place  in  which  it  is  carried  on.  If  a  war  breaks  out,  a  foreign 
merchant  carrying  on  trade  in  a  belligerent  country  has  a  rea- 
sonable time  allowed  him  for  transferring  himself  and  his  prop- 
erty to  another  country.  If  he  does  not  avail  himself  of  the 
opportunity,  he  is  to  be  treated,  for  the  purposes  of  the  trade, 
as  a  subject  of  the  Power  under  whose  dominion  he  carries  it 
on  and,  of  course,  as  an  enemy  of  those  with  whom  that  Power 
is  at  war." 

Their  Lordships  also  refer  to  the  following  important  passage 
in  Mr.  Justice  Story's  Notes  (Pratt 's  Story,  at  pp.  60-61)  :  "In 
general,  a  neutral  merchant  trading  in  the  ordinary  manner 
with  a  belligerent  country,  does  not,  by  the  mere  accident  of  his 
having  a  stationed  agent  there,  contract  the  character  of  the 
enemy.  But  it  is  otherwise,  if  he  be  not  engaged  in  trade  upon 
the  ordinary  footing  of  a  neutral  merchant,  but  as  a  privileged 
trader  of  the  enemy,  for  then  it  is  in  effect  a  hostile  trade.  So 
if  the  agency  carry  on  a  trade  from  the  hostile  country  which  is 
not  clearly  neutral,  and  if  a  person  be  a  partner  in  a  house  of 
trade  in  an  enemy's  country,  he  is,  as  to  the  concerns  and  trade 
of  that  house,  deemed  an  enemy;  and  his  share  is  liable  to  con- 
fiscation as  such,  notwithstanding  his  own  residence  is  in  a  neu- 
tral country,  for  the  domicile  of  the  house  is  considered  in  this 
respect  as  the  domicile  of  the  partners.  But  if  he  has  a  house 
of  trade  in  a  neutral  country,  he  has  not  the  benefit  of  the  same 
principle;  for  if  his  own  personal  residence  be  in  the  hostile 
country,  his  share  in  the  property  of  the  neutral  house  is  liable 
to  condemnation.  However,  where  a  neutral  is  engaged  in  peace, 
in  a  house  of  trade  in  the  enemy's  country,  his  property,  so  en- 


422  ENEMY  CHARACTER. 

gaged  in  the  house  is  not,  at  the  commencement  of  the  war,  con- 
fiscated; but  if  he  continues  in  the  house  after  the  knowledge 
of  the  war,  it  is  liable,  as  above  stated,  to  confiscation.  It  is  a 
settled  principle  that  the  traffic  alone,  independent  of  residence, 
will,  in  some  cases,  confer  a  hostile  character  on  the  individual. ' ' 

If  the  principles  thus  laid  down  be  applied  to  the  facts  of  the 
present  case,  it  would  appear  that  the  interest  of  Richard  Mayer 
in  the  goods  in  question  ought  to  be  condemned  by  reason  of  his 
commercial  domicil  in  Germany.  He  might,  it  is  true,  have 
avoided  this  result  by  taking  steps  within  the  reasonable  inter- 
val allowed  by  law  to  dissociate  himself  from  the  enemy  firm  in 
which  he  was  a  partner.  But  it  is  not  suggested  that  he  took 
any  such  step  or  that  such  reasonable  interval  has  not  elapsed. 
On  the  contrary,  it  is  admitted  that  since  the  outbreak  of  the 
war  he  has  been  actively  engaged  in  the  affairs  of  Reis  &  Co. 
in  Germany. 

The  contention  of  the  respondent  is  based  entirely  on  the  fol- 
lowing consideration:  The  goods  in  question  were  shipped  in 
time  of  peace.  There  could  therefore  be  no  enemy  taint  affecting 
them  when  the  war  broke  out.  Since  the  outbreak  nothing  has 
been  done  in  respect  of  them  by  virtue  of  which  they  could  have 
acquired  an  enemy  character.  The  criterion  of  character  is 
therefore  personal  domicil.  It  will  be  observed  that  this  conten- 
tion with  regard  to  goods  at  sea  at  the  commencement  of  a  war 
entirely  ignores  the  doctrine  of  commercial  domicil  as  determin- 
ing the  character  of  the  goods.  It  leaves  the  character  of  such 
goods  to  depend  on  personal  domicil,  subject  to  the  question 
whether  the  owner  has  done  anything  to  impress  upon  them  or 
taint  them  with  an  enemy  character.  In  other  words,  it  creates 
an  exception  to  the  theory  of  commercial  domicil,  and  deals  with 
the  excepted  cases  on  different  principles.  Counsel  for  the  re- 
spondent was  unable  to  suggest,  and  their  Lordships  have  been 
unable  to  find,  any  logical  justification  for  such  an  exception. 
If  it  exists  at  all,  it  must  be  attributed,  as  counsel  for  the  re- 
spondent attributed  it,  to  an  over-scrupulous  desire  on  the  part 
of  our  Prize  Courts  to  protect  neutral  interests.  Further,  if  the 
exception  exists,  the  rule  which  allows  a  reasonable  interval  in 
which  the  neutral  owner  can  discontinue  his  commercial  domicil 
in  the  enemy  country  will  be  reduced  within  very  narrow  limits, 
if  it  is  not  abrogated  altogether,  for  a  neutral  owner  will,  by 
shipping  goods  after  the  war,  or  by  otherwise  taking  part  after 
the  war  in  the  affairs  of  the  enemy  house  of  business,  have 


THE  ANGLO-MEXICAN.  423 

elected  to  continue  his  commercial  domicil  in  the  enemy  country, 
and  so  brought  the  interval  to  an  end.  Nevertheless,  the  excep- 
tion is  said  to  be  supported  by  authority,  and  their  Lordships 
will  therefore  proceed  to  consider  the  several  authorities  on 
which  reliance  is  placed. 

The  three  earliest  authorities  referred  to  are  The  Jacobus 
Johannes  (1785),  The  Osprey  (1795),  and  The  Nancy  (1798), 
all  of  them  decided  by  the  Lords  Commissioners  in  Prize  Cases. 
The  decisions  are  unreported,  but  the  printed  cases  and  appen- 
dices which  were  before  the  Lords  Commissioners  are  preserved 
in  the  Admiralty  Library,  and  their  Lordships  have  had  access 
thereto. 

In  The  Jacobus  Johannes  the  goods  in  question  belonged  to  a 
firm  carrying  on  business  in  the  Dutch  island  of  St.  Eustatius. 
The  goods  had  been  shipped  from  St.  Eustatius  on  December  5, 

1780,  on  board  a  Dutch  vessel  bound  for  Amsterdam  and  were 
deliverable  at  Amsterdam.    Hostilities  between  this  country  and 
Holland  commenced  on  December  20,  1780.     On  February  3, 

1781,  St.  Eustatius  was  occupied  by  His  Majesty's  naval  forces. 
On  February  4  the  Jacobus  Johannes  with  its  cargo  was  cap- 
tured at  sea.    The  firm  which  owned  the  goods  consisted  of  two 
partners,  namely,  Haason,  a  Danish  subject,  but  domiciled  in 
St.  Eustatius,  where  he  carried  on  the  business  of  the  firm,  and 
Ernst,   also  a   Danish  subject,  but   domiciled   at   Copenhagen. 
Shortly  after  the  occupation  of  the  island  by  the  British,  Haason 
proceeded  to  wind  up  the  firm's  business  and  finally  left  the 
island  in  April,  1781.     It  is  to  be  observed  on  these  facts  that 
Haason 's  personal  domicil  being  Dutch  at  the  date  of  capture 
he  was  prima  facie,  at  any  rate,  an  enemy.    If  according  to  the 
English  as  well  as  the  American  view  of  international  law,  he 
was  not  entitled  to  an  interval  after  the  commencement  of  hos- 
tilities in  which  he  could  abandon  his  acquired  domicil,  his  share 
in  the  goods  would  in  any  event  be  confiscable.     If  he  was  en- 
titled to  an  opportunity  of  abandoning  his  acquired  domicil,  the 
question  would  arise  whether  he  had  done  so  within  a  reasonable 
time.     On  the  other  hand,  Ernst,  who  was  domiciled  at  Copen- 
hagen, could  only  be  regarded  as  an  enemy  by  virtue  of  the  com- 
mercial domicil  of  the  firm,  and  he  was  clearly  entitled  to  a  rea- 
sonable interval  in  which  he  might  dissociate  himself  from  the 
firm.    The  interest  of  Haason  was  condemned  and  that  of  Ernst 
released.    It  does  not  appear  what  were  the  reasons  for  this  de- 
cision.    It  is  quite  possible  that  the  case  turned  wholly  on  per- 


424  ENEMY  CHARACTER. 

sonal  domicil,  the  doctrine  of  commercial  domicil  being  yet  un- 
developed. It  is  also  possible  thatj  in  the  opinion  of  the  Lords 
Commissioners,  the  connection  of  both  partners  with  an  enemy 
business  had  in  fact  been  determined  within  a  reasonable  inter- 
val, and  that  such  determination  would  justify  the  release  of 
Ernst's  interest,  but  would  not  improve  the  position  of  Haason, 
whose  personal  as  well  as  commercial  domicil  at  the  date  of 
capture  was  Dutch.  Under  these  circumstances  their  Lordships 
fail  to  see  how  the  case  can  be  relied  on  as  an  authority  for  the 
alleged  exception  to  the  general  rule. 

In  The  Osprey  the  property  in  question  was  a  ship  employed 
in  the  Southern  Whale  Fishery  with  her  cargo  of  whale-oil  and 
whale-bone.  She  had  left  Dunkirk  on  her  whaling  adventure  on 
May  24,  1792.  War  broke  out  between  this  country  and  France 
in  February,  1793,  and  on  May  15,  1793,  the  ship  and  her  cargo 
were  seized  as  prize.  The  ship  belonged  to  three  persons,  all 
subjects  of  the  United  States  of  America,  two  of  whom  were 
domiciled  at  Dunkirk,  and  the  third,  one  Rodman,  was  domiciled 
at  Nantucket.  The  cargo  belonged  to  the  owners  of  the  ship  and 
the  master  and  crew  in  shares,  which  were  apparently  settled 
by  the  custom  of  the  fishery.  Among  the  crew  were  other  sub- 
jects of  the  United  States,  no  doubt  domiciled  in  America.  The 
Lords  Commissioners  ordered  a  release  of  Rodman's  share  in 
the  ship  and  cargo  and  of  the  shares  in  the  cargo  of  the  Amer- 
ican members  of  the  crew.  The  reasons  for  this  decision  are 
again  unknown,  but,  as  in  the  case  of  The  Jacobus  Johannes,  the 
case  may  have  turned  entirely  on  personal  domicil.  It  should  be 
observed  that  there  was  really  no  commercial  domicil  in  an 
enemy  country,  the  whole  adventure  being  a  high  seas  adventure. 
Further,  the  whole  adventure,  except  the  return  voyage,  had 
apparently  been  carried  out  during  peace,  and  had  come  to  an 
end  when  the  ship  and  cargo  were  seized  as  prize.  There  was 
in  fact  nothing  from  which,  when  the  war  broke  out,  the  neu- 
trals interested  could  dissociate  themselves.  Again  their  Lord- 
ships fail  to  see  how  this  case  can  be  relied  upon  as  an  authority 
for  the  alleged  exception  to  the  general  rule. 

In  The  Nancy  the  goods  in  question  had  been  shipped  early  in 
July,  1793,  a  state  of  open  war  having  existed  between  this  coun- 
try and  France  since  February  14,  1793.  The  shipment  was 
made  at  Port-au-Prince  in  the  island  of  St.  Domingo  by  Stephen 
Zaccharie,  the  cargo  being  consigned  to  Zaccharie.  Coopman  & 
Co.,  of  Baltimore.  It  was  not  quite  clear  on  the  evidence 


THE  ANGLO-MEXICAN.  425 

whether  the  goods  belonged  to  Stephen  Zaccharie,  and  were  de- 
livered to  Zaccharie,  Coopman  &  Co.  on  his  account,  or  whether 
they  belonged  to  Zaccharie,  Coopman  &  Co.  The  partners  in  this 
firm  were  Stephen  Zaccharie  and  two  others,  Coopman  and 
Vochey.  Coopman  was  an  American  by  birth,  and  Stephen 
Zaccharie  and  Vochey,  though  French  by  birth,  claimed  to  have 
been  naturalized  in  the  United  States.  All  of  them  claimed  to 
have  an  American  domicil,  but  Coopman  and  Stephen  Zaccharie 
were  both  of  them  in  St.  Domingo  at  the  time  of  shipment,  and 
also  at  and  after  the  capture.  The  judge  of  first  instance  re- 
leased the  goods  to  Stephen  Zaccharie,  on  the  ground  that  they 
were  at  the  time  of  capture  his  property  and  that  he  was  an 
American  citizen.  The  Lords  Commissioners  reversed  this  de- 
cision, and  condemned  the  goods  as  enemy  property.  It  is  not 
clear  to  whom  they  considered  the  goods  to  belong,  but  if  they 
belonged  to  Stephen  Zaccharie  it  is  quite  clear  that  he  was  at 
all  material  times  actually  trading  in  enemy  territory;  and  if 
they  bedonged  to  the  firm  it  is  equally  true  that  two  of  the  firm 
were  at  all  material  times  trading  in  the  enemy  country  on  be- 
half of  the  firm.  In  respect,  therefore,  of  the  goods  in  question 
there  was,  whoever  was  the  owner  and  wherever  such  owner  was 
personally  domiciled,  a  commercial  domicil  by  virtue  of  which 
the  goods  were  confiscable.  There  could  be  no  question  of  any 
reasonable  interval  for  the  owner  to  discontinue  or  dissociate 
himself  from  the  trade  in  the  enemy  country,  for  the  transac- 
tion originated  after  the  outbreak  and  with  full  knowledge  of 
the  state  of  war.  In  this  respect  the  case  differed  from  The 
Jacobus  Johannes  or  The  Osprey,  where  the  transaction  orig- 
inated in  the  time  of  peace.  It  has  even  less  bearing  than  these 
cases  on  the  point  at  issue. 

The  three  cases  of  The  Jacobus  Johannes,  The  Osprey,  and 
The  Nancy  were  commented  upon  by  Sir  William  Scott  in  The 
Vigilantia,  1  C.  Rob.  1,  15.  After  mentioning  the  Jacobus  Johan- 
nes and  The  Osprey,  he  says  that  from  these  cases  a  notion  had 
been  adopted  that  the  domicil  of  the  parties  was  that  alone  to 
which  the  Court  had  a  right  to  resort.  From  this  it  appears 
that,  according  to  the  general  opinion,  both  The  Jacobus  Johan- 
nes and  The  Osprey  had  turned  entirely  on  the  personal  domicil 
of  the  claimants,  the  doctrine  of  commercial  domicil  being  whol- 
ly ignored.  But  Sir  William  Scott  proceeds  to  say  of  The 
Nancy  that  it  had  been  decided  on  different  principles,  the  Lords 
Commissioners  distinguishing  the  former  cases  on  the  ground 


426  ENEMY  CHARACTER. 

that  they  "were  cases  merely  at  the  commencement  of  a  war; 
that  in  the  case  of  a  person  carrying  on  trade  habitually  in  the 
country  of  the  enemy,  though  not  resident  there,  he  should  have 
time  to  withdraw  himself  from  that  commerce ;  and  that  it 
would  press  too  heavily  on  neutrals,  to  say,  that  immediately  on 
the  first  breaking  out  of  a  war,  their  goods  should  become  sub- 
ject to  confiscation."  Sir  William  Scott  adds  that  it  was  ex- 
pressly laid  down  in  The  Nancy  that  if  a  person  entered  into  a 
house  of  trade  in  the  enemy  country  in  time  of  war,  or  con- 
tinued that  connection  during  the  war,  he  should  not  protect 
himself  by  mere  residence  in  a  neutral  country. 

Sir  William  Scott  had  been  counsel  for  one  of  the  parties  in 
The  Nancy,  and  his  account  of  what  was  said  by  the  Lords  Com- 
missioners is  no  doubt  based  on  personal  knowledge.  It  is  rea- 
sonably clear,  in  spite  of  a  slight  ambiguity  in  Sir  William 
Scott's  language,  that  the  Lords  Commissioners  in  The  Nancy 
distinguished  the  two  earlier  cases  on  the  ground  that  the  goods 
in  question  in  these  cases  had  been  shipped  before  the  war, 
whereas  in  the  case  of  The  Nancy  the  shipment  was  after  the 
commencement  of  hostilities.  This  was  a  perfectly  legitimate 
ground  of  distinction,  but  it  is  a  fallacy  to  suppose  that  a  judge 
necessarily  approves  every  case  which  he  distinguishes  from  that 
with  which  he  is  himself  dealing,  and  a  still  greater  fallacy  to 
suppose  that  he  approves  of  it  on  any  particular  ground.  The 
rule  which  Sir  William  Scott  states  to  have  been  laid  down  in 
The  Nancy  is  the  rule  by  which  an  enemy  character  is  imposed 
on  goods  by  virtue  of  the  commercial  domicil  of  the  owner,  not 
a  rule  which  leaves  the  personal  domicil  as  the  criterion  of  char- 
acter, subject  to  a  possible  enemy  taint  imposed  by  the  action 
of  the  owner.  It  is  stated  without  exception.  If  Sir  William 
Scott  had  considered  that  the  Lords  Commissioners  were  coun- 
tenancing or  even  suggesting  an  exception  to  the  rule,  he  would 
certainly  have  said  so,  more  especially  as  cases  within  the  excep- 
tion would  fall  to  be  decided  on  principles  independent  of  com- 
mercial domicil. 

The  President  appears  to  have  treated  the  case  above  referred 
to  as  authorities  in  the  respondent's  favour,  and  says  that  the 
doctrines  there  laid  down  have  been  followed  by  America  and 
this  country  ever  since.  He  refers  in  particular  to  The  Antonia 
Johanna  (1816),  1  Wheat.  159,  The  Friendschaft,  4  Wheat.  105, 
The  San  Jose  Indiano,  2  Gall.  268,  and  The  Cheshire,  3  Wall. 


THE  ANGLO-MEXICAN.  427 

231.  These  are  all  of  them  American  authorities,  which  upon 
examination  appear  to  support  the  general  principle  of  the  ef- 
fect of  a  commercial  domicil  acquired  in  an  enemy  country  by 
a  person  whose  personal  domicil  is  in  a  neutral  country.  They 
do  not  support  the  exception  to  the  general  principle  for  which 
the  respondent  contends. 

In  the  Antonia  Johanna  (1816),  1  Wheat.  159,  the  goods  in 
question  were  held  to  have  been  shipped  for  and  on  account  of 
a  house  of  trade  in  the  neutral  country,  and  the  case  therefore 
fell  to  be  decided  on  the  personal  domicil  of  the  partners  in  the 
neutral  house  of  trade.  In  The  Friendschaft,  4  "Wheat.  105,  -the 
goods  in  question  belonged  to  a  house  of  trade  established  in  the 
enemy  country.  They  had  been  shipped  during  the  war.  The 
doctrine  of  commercial  domicil  is  stated  by  Story  J.,  and  the 
goods  were  condemned.  No  exception  to  the  rule  is  mentioned. 
In  The  San  Jose  Indiano,  2  Gall.  268,  the  authorities  on  which 
the  doctrine  of  commercial  domicil  is  based  are  discussed  at 
some  length.  The  cases  of  The  Jacobus  Johannes,  The  Osprey, 
and  The  Nancy  are  mentioned,  but  not  as  creating  any  exception 
to  the  general  doctrine.  Similarly  in  The  Cheshire,  3  Wall.  231, 
there  is  a  statement  of  the  general  doctrine,  but  no  allusion  to 
any  possible  exception. 

With  regard  to  the  British  authorities,  their  Lordships  have 
failed  to  find  any  authority  for  the  respondent's  contention,  un- 
less it  be  The  Jacobus  Johannes,  The  Osprey,  and  The  Nancy, 
and  Sir  William  Scott's  comments  on  them  in  The  Vigilantia, 
1  C.  Rob.  1,  15. 

In  their  Lordships'  opinion  these  cases  and  comments  afford  a 
very  slender  support  for  the  contention  in  question.  It  appears 
from  the  facts  in  each  case  that  the  point  did  not  necessarily 
a"rise  for  decision.  Each  case  is  explicable  without  it  having 
been  raised  or  decided.  The  whole  superstructure  of  the  re- 
spondent's argument  is  ultimately  based  on  what  is  said  by  Sir 
William  Scott  in  The  Vigilantia,  1  C.  Rob.  1,  15.  But  as  above 
indicated,  tbis  is  quite  consistent  with  the  general  rule  deduced 
from  the  other  authorities. 

Under  these  circumstances  their  Lordships  have  come  to  the 
conclusion  that  there  is  no  such  exception  to  the  general  rule  as 
that  for  which  the  respondent  contends.  A  neutral  owning  or 
being  a  partner  in  a  house  of  business  in  an  enemy  country  has 
a  commercial  domicil  in  that  country.  This  commercial  domicil 
imposes  an  enemy  character  on  his  property  or  interest  in  such 


428  ENEMY  CHARACTER. 

house  of  business.  There  is  no  question  of  any  particular  act 
on  his  part  by  which  any  particular  goods  belonging  to  him  or 
his  interest  in  any  particular  goods  may  be  tainted.  If,  having 
such  a  commercial  domicil  in  a  country  which  by  the  outbreak 
of  war  becomes  an  enemy  country,  he  desires  to  avoid  the  conse- 
quences entailed  by  such  domicil,  he  may  avail  himself  of  the 
interval  allowed  by  law  to  discontinue  or  dissociate  himself  from 
the  business  in  question.  Inasmuch,  however,  as  goods  at  sea 
when  the  war  commenced  may  be  captured  before  such  reason- 
able interval  has  elapsed,  the  Court  will  in  a  proper  case  take 
notice  of  a  discontinuance  or  dissociation  taking  place  after  the 
capture,  or  will  even  adjourn  proceedings  in  the  Prize  Court  to 
give  an  opportunity  for  such  discontinuance  or  dissociation. 
In  the  case  of  goods  shipped  after  the  commencement  of  the  war, 
the  circumstances  of  the  shipment  must  be  considered.  The 
shipment  may  have  been  made  by  or  with  the  privity  of  the 
claimant  in  the  ordinary  course  of  the  business  in  the  enemy 
country.  In  such  a  case  the  claimant  will  have  elected  to  con- 
tinue the  business,  and  there  will  be  a  case  for  condemnation. 
Only  if  the  shipment  was  made  without  the  privity  of  the  claim- 
ant or  as  a  step  in  discontinuing  or  dissociating  himself  from 
the  enemy  connection  can  there  be  any  question  of  their  release. 
Such  a  case  will  be  determined  in  the  same  way  as  like  ques- 
tions with  regard  to  goods  at  sea  when  the  war  commenced. 
There  is,  in  their  Lordships'  opinion,  no  principle  upon  which 
any  such  exception  as  that  set  up  in  the  present  case  can  be 
based.  It  is  the  duty  of  the  Court  to  hold  an  even  hand  between 
belligerents  and  neutrals,  and  not  to  create  in  favour  of  the 
latter,  and  at  the  expense  of  the  former,  exceptions  or  exemp- 
tions not  clearly  justified  by  the  principles  of  international  law. 
Their  Lordships  are  of  opinion  that  the  respondent's  interest  in 
the  goods  in  question  ought  to  have  been  condemned  for  the 
reasons  above  stated.  It  therefore  becomes  unnecessary  to  deal 
with  the  second  argument  put  forward  on  behalf  of  the  Crown, 
namely,  that  which  was  based  on  the  alleged  attempt  of  the  re- 
spondent to  deceive  the  Cc  art. 

Their  Lordships  will  humbly  advise  His  Majesty  that  this  ap- 
peal should  be  allowed  with  costs,  and  the  respondent's  interest 
in  the  goods  in  question  condemned  accordingly. 

NOTE. — The  nations  are  sharply  divided  as  to  the  test  that  should  be 
applied  for  the  determination  of  enemy  character.  In  France  and  the 
Continental  countries  generally,  nationality  is  the  sole  test.  Political 


NOTE.  429 

allegiance  practically  determines  enemy  character.  Cairo.  IV,  sec. 
1932;  Bonfils  (Fauchille),  sec.  1343.  But  Great  Britain,  followed  by 
America  and  Japan,  adopted  from  Grotius  the  principle  that  what- 
ever persons  or  property  are  so  situated  as  to  be  under  enemy  control 
and  thus  to  increase  the  strength  of  the  enemy  possess  enemy  char- 
acter. At  the  London  Naval  Conference  of  1908-1909  an  attempt  was 
made  to  reconcile  these  divergent  views,  but  without  success.  Japan, 
Holland  and  Spain  supported  the  Anglo-American  practice,  but  Austria- 
Hungary,  Germany,  Italy  and  Russia  supported  France.  Hence  the 
question  was  left  open.  This  difference  in  point  of  view  is  largely  ex- 
plained by  the  fact  that  in  the  wars  waged  by  Great  Britain  the 
preponderance  of  her  navy  has  made  the  destruction  of  enemy  com- 
merce one  of  the  chief  objects  of  British  strategy  and  has  given  to 
prize  law  a  greater  importance  than  it  has  in  any  other  country.  The 
Anglo-American  principle  is  denominated  trade  domicile  or  commer- 
cial domicile,  but  in  its  application  it  is  not  confined  to  persons  en- 
gaged in  commerce.  It  differs  from  civil  or  personal  domicile  in  that 
it  is  not  regarded  as  permanent  nor  for  all  purposes,  that  it  is  more 
easily  acquired  and  abandoned  and  is  restricted  to  the  relation  of  the 
persons  or  property  concerned  to  the  war.  For  further  discussions 
of  the  Anglo-American-Japanese  doctrine  of  enemy  character  based 
upon  commercial  domicile  see  The  Vigilantia  (1798),  1  C.  Robinson, 
1;  The  Diana  (1803),  5  Ib.  60;  The  Antonia  Johanna  (1816),  1 
Wheaton,  159;  The  Pizarro  (1817),  2  Ib.  227;  The  Friendschaft  (1819), 
4  Ib.  105;  The  Johanna  Emilie  (1854),  Spinks,  317;  The  Baltica  (1857), 
11  Moore,  P.  C.  141;  The  Cheshire  (1866),  3  Wallace,  231;  Mitchell  v. 
United  States  (1874),  21  Ib.  350;  The  Rostock  (Egypt,  1915),  1  Br. 
&  Col.  P.  C.  523;  The  Eumaeus  (1915),  1  Ib.  605;  The  Lutzow 
(No.  4)  (Egypt,  1916),  2  Ib.  122;  Cargo  ex  Mukden  (1904),  2  Hurst 
&  Bray,  25.  One  engaged  in  trade  may  have  one  or  more  commer- 
cial domiciles  distinct  from  his  personal  or  civil  domicile,  The 
Matchless  (1822),  1  Hagg.  Adm.  97;  O'Mealey  v.  Wilson  (1808),  1 
Camp.  482;  The  Jonge  Klassima  (1804),  5  C.  Robinson,  297;  The  Aina 
(1854),  Spinks,  8;  The  Gerasimo  (1857),  11  Moore,  P.  C.  88.  "A  man 
may  have  different  national  characters,"  said  Lord  Stowell,  "ac- 
cording to  the  course  of  different  transactions,"  The  Two  Brothers 
(1799),  1  C.  Robinson,  131,  132.  A  trade  domicile  acquired  in  a  neu- 
tral country  by  a  citizen  of  one  of  the  belligerents  after  the  outbreak 
of  hostilities  will  not  be  recognized  by  either  belligerent,  The  Dos 
Hermanos  (1817),  2  Wheaton,  76.  A  commercial  domicile  cannot  be 
acquired  without  residence.  Hence  the  claim  of  a  firm  composed  of 
Germans  resident  in  Antwerp  and  arguing  that  their  place  of  business 
in  Buenos  Ayres  gave  to  their  goods  shipped  from  that  point  a  neutral 
character  was  rejected,  The  Hypatia  (1916),  L.  R.  [1917]  P.  36.  A 
subject  of  one  of  the  belligerents  domiciled  in  the  territory  of  the 
other  is  held  to  have  an  enemy  character,  The  Venus  (1814),  8  Cranch, 
253;  and  so  also  of  a  neutral  domiciled  in  enemy  territory,  The  Her- 
man (1802),  4  C.  Robinson,  228.  His  personal  disposition  toward  the 
belligerents  is  immaterial,  Mrs.  Alexander's  Cotton  (1865),  2  Wallace, 
404.  A  British  subject  interned  by  the  enemy  but  allowed  sufficient 


430  ENEMY  CHARACTER. 

freedom  to  protect  the  business  of  his  employer,  a  British  Company, 
was  held  to  be  an  alien  enemy  because  of  his  voluntary  residence  in 
enemy  territory,  Scotland  v.  South  African  Territories,  Lt.  (1917),  33 
T.  L.  R.  255,  but  enemy  character  does  not  attach  to  one  who  is  only 
temporarily  in  enemy  territory,  Roberts  v.  Hardy  (1815),  3  M.  &  S. 
533.  A  neutral  residing  in  the  enemy's  country  as  consul  and  engaging 
in  trade  there  acquires  enemy  character,  The  Baltica  (1857),  11  Moore, 
P.  C.  141. 

If  an  alien  enemy  has  acquired  a  commercial  domicile,  his  subse- 
quent internment  does  not  affect  his  property  rights,  The  Annaberg 
(Egypt,  1916),  2  Br.  &  Col.  P.  C.  241.  A  resident  of  enemy  territory 
desiring  to  show  that  he  does  not  have  enemy  character  must  assume 
the  burden  of  proof,  The  Bernon  (1799),  1  C.  Robinson,  102.  On  the 
other  hand  subjects  of  a  belligerent  state  who  are  domiciled  in  a  neu- 
tral country  are  treated  as  neutrals  and  may  trade  with  the  enemy, 
The  Emanuel  (1799),  1  C.  Robinson,  296;  The  Danous  (1802),  4  Ib. 
255»;  The  Ann  (1813),  I  Dodson,  221;  In  re  Mary,  Duchess  of  Suther- 
land (1915),  31  T.  L.  R.  248;  even  though  the  trade  in  which  they  are 
engaged  is  one  which  is  open  only  to  subjects  of  the  belligerent  state, 
Livingston  v.  Maryland  Insurance  Co.  (1813),  7  Cranch,  506;  while  an 
enemy  subject  carrying  on  business  in  a  neutral  country  is  treated  as 
a  friend,  The  Postilion  (1779),  Hay  &  Marriott,  245;  The  San  Jose" 
Indiano  (1814),  2  Gallison,  268. 

While  residence  is  a  neutral  country  will  not  protect  a  merchant's 
share  in  a  house  of  trade  established  in  the  enemy's  country,  The 
William  Bagaley  (1867),  5  Wallace,  377,  residence  in  an  enemy's  coun- 
try will  condemn  his  share  in  a  house  established  in  a  neutral  country, 
The  Antonia  Johanna  (1816),  1  Wheaton,  159.  Hence  in  The  Clan 
Grant  (1915),  1  Br.  &  Col.  P.  C.  272,  it  was  held  that  two-thirds  of  the 
goods  in  a  British  ship  belonging  to  a  partnership  established  in 
Khartoum,  two  of  the  three  partners  being  domiciled  in  Hamburgh, 
could  be  confiscated  as  enemy  property.  And  so  also  of  the  property 
of  members  of  a  Japanese  limited  partnership,  The  Derfflinger  (No.  4.) 
(Egypt,  1916),  2  Br.  &-Col.  P.  C.  102.  Even  if  owned  by  a  loyal  citizen 
of  the  country  of  the  captor  property  coming  from  enemy  territory  is 
enemy  property,  The  Frances  (1814),  8  Cranch,  335;  The  Gray  Jacket 
(1867),  5  Wallace,  342.  But  if  a  subject  of  a  belligerent  state  have 
a  house  of  trade  in  an  enemy  country  and  another  in  a  neutral  coun- 
try, the  enemy  character  of  the  first  does  not  affect  the  other,  The 
Portland  (1800),  3  C.  Robinson,  41;  and  if  a  house  of  trade  established 
in  a  neutral  country  has  branches  in  other  neutral  countries  and  in 
a  belligerent  country,  the  business  of  the  latter  branch,  if  kept  dis- 
tinct, will  not  impart  an  enemy  character  to  the  other  business  of  the 
firm,  The  Liitzow  (1917),  L.  R.  [1918]  A.  C.  435;  but  if  the  partners 
in  a  neutral  firm  reside  and  trade  in  neutral  territory  and  are  also 
partners  in  an  enemy  firm  trading  in  enemy  territory  they  are  alien 
enemies,  Gebruder  van  Uden  v.  Burrell  (Scotland),  1916,  1  S.  L.  T. 
117. 

It  would  seem  that  if  the  place  where  a  mechant's  trade  domicile 
is  established  ceases  to  be  hostile  before  his  goods  are  captured,  he 


NOTE.  431 

should  lose  his  enemy  character  and  his  goods  be  restored  to  him. 
But  a  ship  owned  by  residents  of  the  Cape  of  Good  Hope  (a  Dutch 
colony)  wnich  was  captured  after  the  colony  had  been  conquered  by 
the  English  was  condemned,  The  Danckebaar  Africaan  (1798),  1  C. 
Robinson,  107,  and  goods  whose  enemy  character  was  due  only  to 
the  fact  that  their  owner  had  a  trade  domicile  at  the  German  port  of 
Tsingtau  and  which  were  captured  ten  days  after  the  port  was  taken 
by  the  Japanese  were  also  condemned,  The  Danube  (1915),  3  Lloyd's 
Prize  Cases,  152. 

Domicile  in  a  country  which  is  based  altogether  upon  residence  or 
commercial  interests  therein  may  be  terminated  by  removal,  The  Diana 
(1804),  5  C.  Robinson,  60;  The  Ocean  (1804),  5  Ib.  90;  The  Venus 
(1814),  8  Cranch,  253  (especially  Marshall's  dissenting  opinion) ;  Gates 
v.  Goodloe  (1880),  101  U.  S.  612;  The  Juriady  (1904),  Takahashi,  591; 
but  compare  Tingley  v.  Miiller  (1917),  L.  R.  [1917]  2  Ch.  144,  in  which 
it  was  held  that  a  German  long  domiciled  in  England  did  not  lose  his 
English  domicile  by  merely  returning  to  Germany  with  intent  to  re- 
side there.  The  dissenting  opinion  of  Lord  Justice  Scrutton  seems 
more  correct.  If  such  removal  is  for  the  purpose  of  escaping  an  enemy 
character,  it  must  take  place  soon  after  the  outbreak  of  war.  A  delay 
of  eleven  months  is  too  long,  The  St  Lawrence  (1815),  9  Cranch,  120. 
The  fact  that  the  telegraph  and  the  cable  enable  one  at  the  present 
time  to  inform  himself  at  once  as  to  the  outbreak  of  war  and  to  com- 
municate his  decision  quickly  makes  prompt  action  more  necessary 
than  formerly,  The  Liitzow  (No.  4)  (Egypt,  1916),  2  Br.  &  Col.  P.  C. 
122.  Domicile  of  origin  easily  reverts,  especially  in  war  time,  and  is 
more  easily  proven  than  is  the  assumption  or  the  continuance  of  a 
neutral  domicile  by  an  enemy  subject,  La  Virginie  (1804),  5  C.  Robin- 
son, 98;  The  Ann  Green  (1812),  1  Gallison,  274;  The  Flamenco,  The 
Orduna  (1915),  1  Br.  &  Col.  P.  C.  509.  One  who  takes  early  steps  to 
withdraw  from  enemy  territory  is  entitled  to  the  restitution  of  his 
property  even  though  his  withdrawal  may  have  been  prevented  by 
forcible  detention,  The  Dree  Gebroeders  (1802),  4  C.  Robinson,  232; 
The  Ocean  (1804),  5  Ib.  90;  The  Juffrow  Catherina  (1804),  5  Ib.  141; 
The  Gerasimo  (1857),  11  Moore,  P.  C.  88. 

In  the  case  of  those  oriental  countries  in  which  extraterritorial  jur- 
isdiction is  permitted,  the  question  of  trade  domicile  involves  some 
special  considerations.  In  The  Eumaeus  (1915),  1  Br.  &  Col.  P.  C. 
G05,  a  firm  composed  of  two  British  and  two  German  partners  doing 
business  at  Shanghai  and  registered  at  the  German  Consulate  in  Shang- 
hai as  a  German  firm  sought  the  release  of  its  goods,  which  had  been 
seized  as  prize,  on  the  ground  that  it  was  domiciled  at  Shanghai,  a 
neutral  port.  In  holding  that  none  of  the  partners  had  acquired  or 
could  acquire  a  neutral  domicile  at  Shanghai  and  that  the  firm,  by 
registration  at  the  German  Consulate  had  placed  itself  under  German 
law,  Sir  Samuel  Evans  said: 

The  celebrated  case  of  The  Indian  Chief  [1800]  (3  C.  Rob. 
12;  1  Eng.  P.  C.  251)  was  referred  to  as  the  great  authority 
upon  the  doctrine  of  the  immiscible  character  of  merchants  of 


432  ENEMY  CHARACTER. 

Western  countries  residing  and  carrying  on  trade  in  Oriental 
lands.  For  the  spirit  of  the  doctrine,  discussed  with  such 
felicity,  dignity,  and  wealth  of  language,  that  classical  judgment 
will  always  be  referred  to.  But  it  must  be  remembered  that 
the  case  dealt  with  what  was  known  as  the  "factory"  system, 
which  has  long  since  passed  away.  The  "factory"  (to  use  the 
words  of  Sir  Francis  Piggott,  ex-Chief  Justice  of  Hong-Kong) 
"was  an  establishment  tolerated  by  the  State  in  which  it  was 
set  up,  which,  apparently  for  the  convenience  of  all  parties, 
was  withdrawn,  as  well  as  all  persons  therein  residing,  from 
the  operation  of  local  laws." 

The  law  applicable  to  this  archaic  and  obsolete  system  is 
that  which  was  laid  down  by  Lord  Stowell  in  The  Indian  Chief 
(3  C.  Rob.  12;  1  Eng.  P.  C.  251),  and  it  is  sufficiently  stated  in 
this  passage  from  his  judgment: 

"It  is  to  be  remembered  that  wherever  even  a  mere  factory 
is  founded  in  the  Eastern  parts  of  the  world,  European  persons 
trading  under  the  shelter  and  protection  of  those  establish- 
ments are  conceived  to  take  their  national  character  from  that 
association  under  which  they  live  and  carry  on  this  commerce. 
It  is  a  rule  of  the  law  of  nations  applying  particularly  to  those 
countries.  ...  In  China,  and  I  may  say  generally  through- 
out the  East,  persons  admitted  into  a  factory  are  not  known 
in  their  own  peculiar  national  character;  and,  being  not  ad- 
mitted to  assume  the  character  of  the  country,  they  are  con- 
sidered only  in  the  character  of  that  association  or  factory." 

Since  the  days  of  The  Indian  Chief  (3  C.  Rob.  12;  1  Eng. 
P.  C.  251)  a  vast  change  has  come  over  the  conditions  of 
commerce  between  Western  and  Eastern  States.  Lord  Stowell 
quoted  the  line  Doris  amara  suam  non  intermiscuit  undam. 
But  the  sea,  never  changing,  and  yet  ever  changing  within  the 
limits  set  to  the  water,  has  ceased  to  be  a  separating  influence 
between  distant  lands  in  times  of  peace,  especially  since  the 
advent  and  with  the  development  of  steam  transit.  It  has 
rather  become  a  means  of  union  than  of  separation  in  the 
world  of  commerce.  And  Eastern  nations  have  long  grown 
out  of  the  state  of  necessity  for  the  factory  system.  Commerce 
has  been  fostered,  and  the  great  States  of  the  East  have  been 
willing  to  grant  to  subjects  and  citizens  of  the  European  na- 
tions exterritorial  privileges  of  an  extensive  kind  under 
treaties  and  otherwise,  which  relieve  those  to  whom  they  are 
granted  from  obedience  to  the  laws  of  the  Oriental  States  in 
which  they  reside  and  carry  on  business,  and  permit  them  to 


Under  treaty  China  has  accorded  the  rights  and  privileges 
of  exterritoriality  to  the  chief  European  States.  In  Shanghai 
there  is  a  British  Supreme  Court.  In  other  parts  of  China 
there  are  the  usual  Consular  Courts.  It  is  not  necessary  to 
give  any  details  of  the  privileges.  The  British  communities 


NOTE.  433 

are  now  regulated  by  the  China  and  Corea  Order  in  Council  of 
1904.  Similar  regulations  exist  for  other  European  countries, 
including  Germany;  and  it  may  be  stated  shortly  that  the  ef- 
fect of  these  is  that  not  only  are  the  respective  European  com- 
munities governed  by  their  own  national  laws  among  them- 
selves, but  that  the  Chinese  authorities  are  precluded  from  ex- 
ercising any  authority  in  any  disputes  between  the  subjects  or 
citizens  of  the  European  States  respectively,  and  other  for- 
eigners. 

Every  British  subject  is  required  to  register  himself  an- 
nually in  the  prescribed  Consulate — see  China  and  Corea  Or- 
der in  Council,  1904,  s.  162.  The  subjects  of  other  States  have 
to  do  likewise.  As  one  writer  has  said:  "The  register  is 
essential  in  order  that  the  protecting  duties  of  the  Minister 
may  be  properly  exercised;  it  would  be  essential  even  if  there 
were  only  the  national  and  the  British  communities;  it  is  ten 
times  more  important  when  the  foreign  community  is  composed 
of  many  nationalities.  If  the  sheep  upon  the  mountains  are 
not  marked,  how  shall  the  shepherds  know  their  sheep?" 

The  decision  in  The  Eumaeus  was  made  before  the  decision  in 
Casdagli  v.  Casdagli  (1918),  L.  R.  [1919]  A.  C.  145.  If  the  question 
of  trade  domicile  in  a  country  where  extraterritorial  jurisdiction  is 
permitted  were  presented  again,  it  is  possible  that  the  Prize  Court 
would  follow  the  House  of  Lords.  It  may  be  suggested  that  whatever 
control  was  exercised  by  German  law  over  a  German  firm  in  Shanghai 
was  exercised  because  such  law  had  been  adopted  by  China  and  was 
therefore  Chinese  law,  Imperial  Japanese  Government  v.  P.  &  O.  Co. 
[1895]  A.  C.  644.  There  seems  to  be  no  inherent  reason  why  an  enemy 
firm  and  its  enemy  members  should  not  acquire  a  trade  domicile  in 
a  country  where  extraterritorial  jurisdiction  is  permitted. 

On  the  subject  of  enemy  character  see  Baty,  "Trade  Domicile  in 
War",  Journal  of  the  Society  of  Comparative  Legislation,  N.  S.  IX, 
Part  I,  157,  X,  183;  Westlake,  "Trade  Domicile  in  War,"  Ib.  IX,  Part 
II,  265-;  Dicey,  Conflict  of  Laws,  736;  Borchard,  sec.  102,  245;  Cobbett, 
Cases  and  Opinions,  II,  19;  Hyde,  II,  557;  Moore,  Digest,  VII,  424. 


434  ENEMY  CHARACTER. 

SECTION  2.    ARTIFICIAL  PERSONS. 

DAIMLER    COMPANY,    Limited,    Appellants,    v.     CONTI- 
NENTAL TYRE  AND  RUBBER  COMPANY    (GREAT 
BRITAIN),  Limited,  Respondents. 

HOUSE  OF  LORDS  OF  GREAT  BRITAIN.    1916. 
Law  Reports  [1916]  2  A.  C.  307. 

Appeal  from  a  decision  of  the  Court  of  Appeal,  [1915]  1  K.  B. 
893,  affirming  an  order  of  Scrutton  J.  in  chambers.  .  .  . 

On  October  23,  1914,  an  action  was  commenced  in  the  name 
of  the  respondent  company  by  specially  indorsed  writ  for  56051. 
16s.  alleged  to  be  due  from  the  appellants  for  principal,  interest 
and  notarial  charges  on  three  bills  of  exchange  drawn  by  the 
respondents  and  accepted  by  the  appellants  in  payment  for  goods 
supplied  to  them  by  the  respondents  prior  to  the  outbreak  of 
the  war  with  Germany.  The  writ  was  issued  by  the  solicitors  of 
the  respondent  company  upon  the  instructions  of  the  secretary. 
On  October  30,  1914,  a  summons  was  taken  out  in  behalf  of  the 
respondent  company  under  Order  XIV.  for  leave  to  sign  judg- 
ment for  the  amount  of  the  claim  with  interest  and  costs.  This 
summons  was  opposed  by  the  appellants  on  the  ground  that  the 
company  and  its  officers  were  alien  enemies  and  that  conse- 
quently the  company  was  incapable  of  instituting  these  proceed- 
ings or  of  giving  a  good  and  valid  discharge  for  the  amount 
claimed ;  and.  further,  that  the  appellants  in  paying  that  amount, 
would  be  acting  in  contravention  of  the  Trading  with  the  Enemy 
Act,  1914.  The  appellants  therefore  contended  that  the  pro- 
ceedings were  wrongly  instituted  and  that  unconditional  leave 
to  defend  should  be  given  to  them. 

The  respondent  company  was  incorporated  [in  England] 
under  the  Companies  Acts  on  March  29,  1905,  with  a  capital  of 
10,OOOL,  subsequently  increased  to  25,OOOL,  in  fully  paid  11., 
shares,  and  had  its  registered  office  in  London.  It  was  formed 
for  the  purpose  of  selling  in  the  United  Kingdom  motor  car 
tyres  made  in  Germany  by  a  company  incorporated  in  that  coun- 
try under  German  law.  At  the  date  of  the  writ  the  German 
company  held  23,398  shares  in  the  respondent  company,  and 
the  remaining  shares,  except  one,  were  held  by  subjects  of  the 
German  Empire.  The  one  share  was  registered  in  the  name  of 


DAIMLER  CO.  v.  CONTINENTAL  TYRE  &c.  CO.    435 

Mr.  "Wolter,  the  secretary  of  the  company,  who  was  born  in 
Germany,  but  resided  in  this  country  and  in  1910  became  a 
naturalized  subject  of  the  Crown.  All  the  directors  were  sub- 
jects of  the  German  Empire,  and  three  of  the  four  directors  were 
resident  in  Germany  when  war  was  declared;  the  fourth,  who 
had  previously  resided  in  England,  left  this  country  for  Ger- 
many on  the  outbreak  of  the  war. 

The  Master  made  an  order  that  the  respondent  company  be 
at  liberty  to  sign  final  judgment  in  the  action.  This  order  was 
affirmed  by  Scrutton  J.  in  chambers,  and  the  order  of  the  learned 
judge  was  affirmed  by  the  Court  of  Appeal  (Lord  Reading  C.  J., 
Lord  Cozens-Hardy  M.  R.,  Kennedy  L.  J.,  Phillimore  L.  J.,  and 
Pickford  L.  J. ;  Buckley  L.  J.,  dissenting) .... 

The  Lord  Chief  Justice  [Lord  Reading]  held,  first,  that  the 
company  was  a  separate  legal  entity  and  did  not  change  its 
character  of  an  English  company  because  on  the  outbreak  of 
war  all  its  shareholders  and  directors  resided  in  an  alien  enemy 
country  and  became  alien  enemies;  and,  secondly,  that  the  com- 
pany's solicitors  had  authority  [from  the  secretary]  to  institute 
these  proceedings  on  behalf  of  the  company.  .  .  . 

EARL  OP  HALSBURY.  My  Lords,  I  am  of  opinion  that  this 
judgment  should  be  reversed. 

In  my  opinion  the  whole  discussion  is  solved  by  a  very  simple 
proposition  that  in  our  law,  when  the  object  to  be  obtained  is  un- 
lawful, the  indirectness  of  the  means  by  which  it  is  to  be  obtained 
will  not  get  rid  of  the  unlawfulness,  and  in  this  cause  the  object 
of  the  means  adopted  is  to  enable  thousands  of  pounds  to  be  paid 
to  the  King's  enemies.  Before  war  existed  between  us  and  Ger- 
many, an  associated  body  of  Germans  availed  themselves  of  our 
English  law  to  carry  on  a  business  for  manufacturing  motor 
machines  in  Germany  and  selling  them  here  in  England  and  else- 
where, as  they  were  entitled  to  do,  but  in  doing  so  they  were 
bound  to  observe  the  directions  which  the  Act  of  Parliament 
under  which  they  were  incorporated  required. 

They  were  entitled  to  receive  in  the  shape  of  dividends  the 
profits  of  the  concern  in  proportion  to  their  shares  in  it.  They 
were  all  Germans  originally,  though  one  afterwards  became  a 
naturalized  Englishman.  Now  the  right  and  proper  course  to 
follow  in  the  matter — and  I  have  no  reason  to  suppose  that  any 
other  course  was  followed — was  to  distribute  to  them  rateably, 
according  to  their  shares,  the  profits  of  their  adventure.  But 
this  machinery,  while  perfectly  lawful  in  peace  time,  becomes 


436  ENEMY  CHARACTER. 

absolutely  unlawful  when  the  German  traders  are  at  war  with 
this  country.  I  confess  it  seems  to  me  that  the  question  becomes 
very  plain,  when  one  applies  the  language  of  the  law  to  the  con- 
dition of  things  when  war  is  declared,  between  the  German  who 
is  in  the  character  of  shareholder  and  in  control  of  the  company. 
They  can  neither  meet  here,  nor  can  they  authorize  any  agent  to 
meet  on  any  company  business.  They  can  neither  trade  with 
us  nor  can  any  British  subject  trade  with  them.  Nor  can  they 
comply  with  the  provisions  for  the  government  of  the  company 
which  they  were  bound  by  their  incorporated  character  to  ob- 
serve. 

Under  these  circumstances  it  becomes  material  to  consider 
what  is  this  thing  which  is  described  as  a  "corporation."  It 
is,  in  fact,  a  partnership  in  all  that  constitutes  a  partnership 
except  the  names,  and  in  some  respects  the  position  of  those  who 
I  shall  call  the  managing  partners.  No  one  can  doubt  that  the 
names  and  the  incorporation  were  but  the  machinery  by  which 
the  purpose  (giving  money  to  the  enemy)  would  be  accomp- 
lished. The  absence  of  the  authority  to  issue  the  writ  is  only  a 
part  of  the  larger  question.  No  one  has  authority  to  issue  a 
writ  on  behalf  of  an  alien  enemy,  because  he  has  no  right  him- 
self to  sue  in  the  Courts  of  a  King  with  whom  his  own  Sovereign 
is  at  war.  No  person  or  any  body  of  persons  to  whom  attaches 
the  disability  of  suing  under  such  circumstances  can  have  au- 
thority, and  to  attempt  to  shield  the  fact  of  giving  the  enemy 
the  money  due  to  them  by  the  machinery  invented  for  a  lawful 
purpose  would  be  equivalent  to  enclosing  the  gold  and  attempt- 
ing to  excuse  it  by  alleging  that  the  bag  containing  it  was  of 
English  manufacture.  I  observe  the  Lord  Chief  Justice  says 
that  the  company  is  a  live  thing.  If  it  were,  it  would  be  capable 
of  loyalty  and  disloyalty.  But  it  is  not;  and  the  argument  of 
its  being  incapable  of  being  loyal  is  founded  on  its  not  being  "a 
live  thing. ' '  Neither  is  the  bag  in  my  illustration  ' '  a  live  thing. ' ' 
And  the  mere  machinery  to  do  an  illegal  act  will  not  purge  its 
illegality — fraus  circuitu  non  purgatur.  After  all,  this  is  a  ques- 
tion of  ingenious  words,  useful  for  the  purpose  for  which  they 
were  designed,  but  wholly  incapable  of  being  strained  to  an 
illegal  purpose.  The  limited  liability  was  a  very  useful  introduc- 
tion into  our  system,  and  there  was  no  reason  why  foreigners 
should  not,  while  dealing  honestly  with  us,  partake  of  the  bene- 
fits of  that  institution,  but  it  seems  to  me  too  monstrous  to  sup- 
pose that  for  an  unlawful,  because,  after  a  declaration  of  war, 


DAIMLER  CO.  v.  CONTINENTAL  TYRE  &c.  CO.    437 

a  hostile,  purpose  the  forms  of  that  institution  should  be  used, 
and  enemies  of  the  State,  while  actually  at  war  with  us,  be  al- 
lowed to  continue  trading  and  actually  to  sue  for  their  profits 
in  trade  in  an  English  Court  of  justice.  .  .  . 

I  would  like  to  add  that  I  by  no  means  desire  to  minimize  the 
value  of  the  weighty  judgments  to  be  delivered  by  your  Lord- 
ships, but  I  have  thought  it  important  that  all  may  understand 
the  principle  that  the  unlawfulness  of  trading  with  the  enemy 
could  not  be  excused  by  the  ingenuity  of  the  means  adopted. 

VISCOUNT  MERSEY.  My  Lords,  I  had  prepared  a  judgment 
expressing  my  opinion  that  this  appeal  ought  to  be  allowed,  but 
since  then  I  have  had  the  opportunity  of  reading  the  judgment 
prepared  by  my  noble  and  learned  friend  Lord  Parker,  and  in 
that  judgment  my  reasons  are  so  fully  expressed  that  I  have 
thought  it  better  to  withdraw  the  judgment  I  had  written. 

I  am  desired  to  say  that  Lord  Kinnear  also  had  prepared  his 
judgment,  but  that  he  will  withdraw  his  judgment  in  favour  of 
the  judgment  of  my  noble  and  learned  friend  Lord  Parker. 

LORD  PARKER  OF  WADDINGTON.  My  Lords,  the  judgment  I  am 
about  to  read  has  been  prepared  with  the  assistance  and  collab- 
oration of  Lord  Sumner,  who  authorizes  me  to  state  that  he 
agrees  with  it. 

My  Lords,  in  my  opinion  this  appeal  ought  to  be  allowed. 

When  the  action  was  instituted  all  the  directors  of  the  plain- 
tin*  company  were  Germans  resident  in  Germany.  In  other 
words,  they  were  the  King's  enemies,  and  as  such  incapable  of 
exercising  any  of  the  powers  vested  in  them  as  directors  of  a 
company  incorporated  in  the  United  Kingdom.  They  were  in- 
capable, therefore,  of  authorizing  the  institution  of  this  action. 
The  contention  that  the  secretary  of  the  company  could  authorize 
such  institution  is  untenable.  The  resolution  by  which  he  was 
appointed  secretary  would  confer  on  him  such  powers  only  as 
were  incident  to  the  performance  of  his  secretarial  duties.  It  is 
true  that  the  directors  of  the  company  might  by  a  proper  reso- 
lution in  that  behalf  have  conferred  on  him  a  power  to  authorize 
the  institution  of  proceedings  in  the  company's  name,  but  they 
did  not  do  so.  ... 

My  Lords,  under  these  circumstances,  it  is,  strictly  speaking, 
unnecessary  to  consider  whether  a  company  incorporated  in  the 
United  Kingdom  can  under  any  and  what  circumstances  be  an 
enemy  or  assume  an  enemy  character.  The  question  has,  how- 
ever, been  so  elaborately  argued  both  here  and  in  the  Court  of 


438  ENEMY  CHARACTER. 

Appeal,  and  is  of  such  general  importance,  that  it  would  not 
be  right  to  ignore  it. 

The  principle  upon  which  the  judgment  under  appeal  proceeds 
is  that  trading  with  -an  incorporated  company  cannot  be  trading 
with  an  enemy -where  the  company  is  registered  in  England 
under  the  Companies  Acts  and  carries  on  its  business  here. 
Such  a  company  it  calls  an  ''English  company,"  and  obviously 
likens  to  a  natural-born  Englishman,  and  accordingly  holds 
that  payment  to  it  of  a  debt  which  is  due  to  it,  and  of  money 
which  is  its  own,  cannot  be  trading  with  the  enemy,  be  its  cor- 
porators who  they  may.  The  view  is  that  an  English  com- 
pany's enemy  officers  vacate  their  office  on  becoming  enemies  and 
so  affect  it  no  longer,  and  that  its  enemy  shareholders,  being 
neither  its  agents  nor  its  principals,  never  in  law  affect  it  at  all. 

My  Lords,  much  of  the  reasoning  by  which  this  principle  is 
supported  is  quite  indisputable.  No  one  can  question  that  a  cor- 
poration is  a  legal  person  distinct  from  its  corporators ;  that  the 
relation  of  a  shareholder  to  a  company,  which  is  limited  by 
shares,  is  not  in  itself  the  relation  of  principal  and  agent  or  the 
reverse ;  that  the  assets  of  the  company  belong  to  it  and  the  acts 
of  its  servants  and  agents  are  its  acts,  while  its  shareholders,  as 
such,  have  no  property  in  the  assets  and  no  personal  responsi- 
bility for  those  acts.  The  law  on  the  subject  is  clearly  laid  down 
in  a  passage  in  Lord  Halsbury's  judgment  in  Salomon  v.  Salo- 
mon &  Co.,  [1897]  A.  C.  22,  30.  "I  am  simply  here,"  he  says, 
"dealing  with  the  provisions  of  the  statute,  and  it  seems  to  me 
to  be  essential  to  the  artificial  creation  that  the  law  should  recog- 
nise only  that  artificial  existence — quite  apart  from  the  motives 
or  conduct  of  individual  corporators.  .  .  .  Short  of  such 
proof" — i.  e.,  proof  in  appropriate  proceedings  that  the  com- 
pany had  no  real  legal  existence — "it  seems  to  me  impossible  to 
dispute  that  once  the  company  is  legally  incorporated  it  must 
be  treated  like  any  other  independent  person  with  its  rights  and 
liabilities  appropriate  to  itself,  and  that  the  motives  of  those 
who  took  part  in  the  formation  of  the  company  are  absolutely 
irrelevant  in  discussing  what  those  rights  and  liabilities  are."  I 
do  not  think,  however,  that  it  is  a  necessary  corollary  of  this 
reasoning  to  say  that  the  character  of  its  corporators  must  be 
irrelevant  to  the  character  of  the  company;  and  this  is  crucial, 
for  the  rule  against  trading  with  the  enemy  depends  upon  enemy 
character. 

A  natural  person,  though   an  English-born  subject  of  His 


DAIMLER  CO.  v.  CONTINENTAL  TYRE  &c.  CO.    439 

Majesty,  may  bear  an  enemy  character  and  be  under  liability  and 
disability  as  such  by  adhering  to  His  Majesty's  enemies.  If  he 
gives  them  active  aid,  he  is  a  traitor;  but  he  may  fall  far  short 
of  that  and  still  be  invested  with  enemy  character.  If  he  has 
what  is  known  in  prize  law  as  a  commercial  domicil  among  the 
King 's  enemies,  his  merchandise  is  good  prize  at  sea,  just  as  if  it 
belonged  to  a  subject  of  the  enemy  Power.  Not  only  actively, 
but  passively,  he  may  bring  himself  under  the  same  disability. 
Voluntary  residence  among  the  enemy,  however  passive  or 
pacific  he  may  be,  identifies  an  English  subject  with  His  Ma- 
jesty's foes.  I  do  not  think  it  necessary  to  cite  authority  for 
these  well-known  propositions,  nor  do  I  doubt  that,  if  they  had 
seemed  material  to  the  Court  of  Appeal,  they  would  have  been 
accepted. 

How  are  such  rules  to  be  applied  to  an  artificial  person,  incor- 
porated by  forms  of  law?  As  far  as  active  adherence  to  the 
enemy  goes,  there  can  be  no  difference,  except  such  as  arises  from 
the  fact  that  a  company's  acts  are  those  of  its  servants  and 
agents  acting  within  the  scope  of  their  authority.  An  illustra- 
tion of  the  application  of  such  rules  to  a  company  (as  it  happens 
a  company  of  neutral  incorporation,  which  is  an  a  fortiori  case) 
is  to  be  found  in  Netherlands  South  African  Ry.  Co.  v.  Fisher, 
18  Times  L.  R.  116. 

In  the  case  of  an  artificial  person  what  is  the  analogue  to 
voluntary  residence  among  the  King 's  enemies  ?  Its  impersonal- 
ity can  hardly  put  it  in  a  better  position  than  a  natural  person 
and  lead  to  its  being  unaffected  by  anything  equivalent  to  resi- 
dence. It  is  only  by  a  figure  of  speech  that  a  company  can  be 
said  to  have  a  nationality  or  residence  at  all.  If  the  place  of 
its  incorporation  under  municipal  law  fixes  its  residence,  then 
its  residence  cannot  be  changed,  which  is  almost  a  contradiction 
in  terms,  and  in  the  case  of  a  company  residence  must  corre- 
spond to  the  birthplace  and  country  of  natural  allegiance  in  the 
case  of  a  living  person,  and  not  to  residence  or  commercial  domi- 
cil. Nevertheless,  enemy  character  depends  on  these  last.  It 
would  seem,  therefore,  logically  to  follow  that,  in  transferring 
the  application  of  the  rule  against  trading  with  the  enemy  from 
natural  to  artificial  persons,  something  more  than  the  mere  place 
or  country  of  registration  or  incorporation  must  be  looked  at. 

My  Lords,  I  think  that  the  analogy  is  to  be  found  in  control, 
an  idea  which,  if  not  very  familiar  in  law,  is  of  capital  import- 
ance and  is  very  well  understood  in  commerce  and  finance.  The 


440  ENEMY  CHARACTER. 

acts  of  a  company's  organs,  its  directors,  managers,  secretary, 
and  so  forth,  functioning  within  the  scope  of  their  authority, 
are  the  company's  acts  and  may  invest  it  definitely  with  enemy 
character.  It  seems  to  me  that  similarly  the  character  of  those 
who  can  make  and  unmake  those  officers,  dictate  their  conduct 
mediately  or  immediately,  prescribe  their  duties  and  call  them  to 
account,  may  also  be  material  in  a  question  of  the  enemy  char- 
acter of  the  company.  If  not  definite  and  conclusive,  it  must 
at  least  be  priina  facie  relevant,  as  raising  a  presumption  that 
those  who  are  purporting  to  act  in  the  name  of  the  company 
are,  in  fact,  under  the  control  of  those  whom  it  is  their  interest 
to  satisfy.  Certainly  I  have  found  no  authority  to  the  contrary. 
Such  a  view  reconciles  the  positions  of  natural  and  artificial 
persons  in  this  regard,  and  the  opposite  view  leads  to  the  para- 
doxical result  that  the  King's  enemies,  who  chance  during  war 
to  constitute  the  entire  body  of  corporators '  in  a  company  reg- 
istered in  England,  thereby  pass  out  of  the  range  of  legal  vision, 
and,  instead,  the  corporation,  which  in  itself  is  incapable  of 
loyalty,  or  enmity,  or  residence,  or  of  anything  but  bare  exist- 
ence in  contemplation  of  law  and  registration  under  some  sys- 
tem of  law,  takes  their  place  for  almost  the  most  important  of 
all  purposes,  that  of  being  classed  among  the  King's  friends  or 
among  his  foes  in  time  of  war. 

What  is  involved  in  the  decision  of  the  Court  of  Appeal  is 
that,  for  all  purposes  to  which  the  character  and  not  merely  the 
rights  and  powers  of  an  artificial  person  are  material,  the  per- 
sonalities of  the  natural  persons,  who  are  its  corporators,  are 
to  be  ignored.  An  impassable  line  is  drawn  between  the  one 
person  and  the  others.  When  the  law  is  concerned  with  the 
artificial  person,  it  is  to  know  nothing  of  the  natural  persons  who 
constitute  and  control  it.  In  questions  of  property  and  capacity, 
of  acts  done  and  rights  acquired  or  liabilities  assumed  thereby, 
this  may  be  always  true.  Certainly  it  is  so  for  the  most  part. 
But  the  character  in  which  property  is  held,  and  the  character 
in  which  the  capacity  to  act  is  enjoyed  and  acts  are  done,  are  not 
in  pari  materia.  The  latter  character  is  a  quality  of  the  com- 
pany itself,  and  conditions  its  capacities  and  its  acts.  It  is 
not  a  mere  part  of  its  energies  or  acquisitions,  and  if  that  char- 
acter must  be  derivable  not  from  the  circumstances  of  its  incor- 
poration, which  arises  once  for  all,  but  from  qualities  of  enmity 
and  amity,  which  are  dependent  on  the  chances  of  peace  or  war 
and  are  attributable  only  to  human  beings,  I  know  not  from 


DAIMLER  CO.  v.  CONTINENTAL  TYRE  &c.  CO.    441 

what  human  beings  that  character  should  be  derived,  in  cases 
where  the  active  conduct  of  the  company's  officers  has  not  al- 
ready decided  the  matter,  if  resort  is  not  to  be  had  to  the  pre- 
dominant character  of  its  shareholders  and  corporators. 

So  far  as  I  can  find,  this  precise  question  has  been  asked  here- 
tofore once  and  once  only,  namely,  in  argument  in  the  case  of 
Bank  of  United  States  v.  Deveaux,  (1809)  5  Cranch,  61,  81. 
The  judgment  of  Marshall  C.  J.  did  not  answer  it,  though  he 
decided  the  case  in  favour  of  the  party  whose  counsel  suggested 
this  point  as  part  of  a  wider  argument.  Accordingly  all  that 
can  be  said  is  that  the  suggestion  cannot  have  shocked  that 
great  jurist,  and  his  actual  decision  proceeds  upon  the  assump- 
tion that  for  certain  purposes  a  Court  must  look  behind  the 
artificial  persona — the  corporation — and  take  account  of  and  be 
guided  by  the  personalities  of  the  natural  persons,  the  cor- 
porators. 

In  the  Court  of  Appeal  the  Lord  Chief  Justice  expressed  the 
opinion  that  the  judgment  of  Marshall  C.  J.  had  not  been  ap- 
proved in  later  cases  before  the  Supreme  Court  of  the  United 
States.  .  .  .  Long  after  his  time  the  matter  was  at  last  set 
at  rest  in  the  case  of  the  St.  Louis  Railway,  161  U.  S.  545,  when 
the  Court  surveyed  all  the  different  phases  of  the  controversy. 
What  is  remarkable  is  the  way  in  which  this  was  done.  The 
Federal  Courts  did  not  ignore  the  existence  of  the  corporators 
and  fix  their  attention  on  the  place  where  the  corporation  was 
chartered,  or  the  State  under  whose  laws  it  was  registered. 
They  continued  to  fix  their  attention  on  the  citizen  corporators, 
but  they  conclusively  and  incontestably  presumed  that  they 
were  all  citizens  of  the  State  of  the  incorporation.  Such  bearing, 
therefore,  as  these  cases  have  on  the  present  question  is  in 
favour  of  the  appellants,  for  it  is  plain  that  great  judges, 
trained  in  the  principles  of  the  English  common  law,  have  not 
found  it  contrary  to  principle  to  look,  at  least  for  some  purposes, 
behind  the  corporation  and  consider  the  quality  of  its  members. 
A  somewhat  similar  observation  arises  upon  Janson  v.  Driefon- 
tein  Consolidated  Mines,  [1902]  A.  C.  484.  The  question 
fought  throughout  in  that  case  was  whether  it  was  against  pub- 
lic policy  for  English  underwriters  to  indemnify  a  company, 
registered  in  the  Transvaal,  against  losses  inflicted  upon  it  just 
before  the  outbreak  of  war  by  the  Government  of  the  South 
African  Republic  in  order  to  strengthen  its  resources  in  the  im- 
pending conflict  with  this  country.  The  case  was  tried  before 


442  ENEMY  CHARACTER. 

the  conclusion  of  peace,  but  on  the  common  footing  that  it  should 
be  taken  that  the  war  was  over.  The  mere  suspension  of  an 
enemy's  right  of  suit  during  war  never  was  relied  on  at  all,  and 
the  plea  that  payment  on  the  policy  would  be  an  act  of  trading 
with  the  enemy  was  dropped.  The  only  case  made  was  that  pay- 
ment would  relieve  enemies  of  the  Crown  from  losses  which  the 
public  policy  of  this  country,  applicable  to  war  and  warlike  con- 
ditions, required  that  they  should  bear  themselves.  It  was  the 
underwriters  who  insisted  on  the  enemy  character  of  the  com- 
pany, for  the  company  itself  denied  it.  As  I  read  the  judg- 
ments of  the  noble  Lords,  none  purported  to  decide  that  the 
company  must  be  an  enemy  corporation  for  all  purposes  by 
reason  of  its  registration  in  the  Transvaal.  They  held  that 
even  if  that  assumption  were  made  in  the  underwriters'  favour, 
yet  their  appeal  must  fail.  The  Lord  Chancellor  expressly  stated 
that  the  question  might  be  debateable,  as  it  is  now  actually  being 
debated,  and  other  noble  Lords  concurred.  Lord  Lindley,  whose 
observations  alone  are  expressed  at  length,  could  not,  I  think, 
have  meant  to  intimate  thereby  that,  in  such  a  case  as  the  pres- 
ent, he  would  decide  for  the  respondents.  What  really  is  sig- 
nificant in  that  case  is  this:  few,  if  any,  of  the  shareholders  in 
the  company  were  in  fact  subjects  of  the  South  African  Repub- 
lic. The  vast  majority  were  subjects  of  various  European 
States.  The  company's  argument  was,  "How  can  it  be  contrary 
to  British  public  policy  that  individual  Frenchmen  and  Germans 
or  Italians  should  get  the  practical  benefit  of  this  policy?"  In 
the  Court  of  Appeal,  [1901]  2  K.  B.  419,  Sir  A.  L.  Smith  M.  R. 
expressly  accepted  this  argument.  To  him  at  least  there  was 
no  impenetrable  screen,  interposed  by  registration,  between  the 
company  and  its  shareholders.  Beyond  this  I  think  for  present 
purposes  the  case  does  not  go.  Further,  the  cases  of  the  English 
Roman  Catholic  colleges  in  France,  cited  to  your  Lordships  from 
2  Knapp,  pp.  23  and  51,  do  not  seem  to  me  to  be  in  point.  They 
turn  on  the  meaning  to  be  attributed  to  the  expression  "British 
subjects"  in  a  particular  treaty.  If  anything,  the  reliance 
placed  on  the  fact  of  the  French  Government's  control  over  the 
colleges  and  on  the  existing  state  of  English  legislation  towards 
Roman  Catholic  ecclesiastics  would  militate  against  the  respond- 
ents' argument.  As  an  illustration  of  the  view  which  has  been 
taken  (under  the  Income  Tax  Acts  it  is  true)  of  the  control 
which  one  trading  company  exercises  over  another  company 
through  the  ownership  of  a  controlling  interest  in  the  latter 's 


DAIMLER  CO.  v.  CONTINENTAL  TYEE  &c.  CO.    443 

shares,  I  would  refer  to  St.  Louis  Breweries  v.  Apthorpe  (1898), 
79  L.  T.  551,  and  Apthorpe  v.  Peter  Schoenhofen  Brewing  Co. 
(1899),  80  L.  T.  395.  In  the  latter  case,  in  deciding  that  an 
English  company,  which  held  a  controlling  interest  in  the  shares 
of  a  United  States  company,  carried  on  business  for  income  tax 
purposes  in  the  United  States  by  virtue  of  that  holding  and  of 
its  control  over  the  business  of  the  latter  company,  Collins  L.  J. 
expressly  said  that  he  was  not  deterred  from  so  deciding  by  the 
decision  of  your  Lordships'  House  in  the  case  of  Salomon  v. 
Salomon  &  Co.,  [1897]  A.  C.  22,  which  was  so  much  relied  on  in 
the  Court  below.  I  think  this  analogy  not  without  importance. 

My  Lords,  the  truth  is  that  considerations  which  govern  civil 
liability  and  rights  of  property  in  time  of  peace  differ  radically 
from  those  which  govern  enemy  character  in  time  of  war.  Joint- 
stock  enterprise  and  English  legislation  and  decisions  about  it 
have  developed  mainly  since  this  country  was  last  engaged  in  a 
great  European  war  and  have  taken  little,  if  any,  account  of 
warlike  conditions.  The  ideal  of  joint-stock  enterprise,  that  with 
limited  liability  the  more  unlimited  the  trading  the  better,  is 
an  ideal  of  profound  peace.  The  rule  against  trading  with  the 
enemy  is  a  belligerent's  weapon  of  self -protection.  I  think  that 
it  has  to  be  applied  to  modern  circumstances  as  we  find  them, 
and  not  limited  to  the  applications  of  long  ago,  with  as  little 
desire  to  cut  it  down  on  the  one  hand  as  to  extend  it  on  the 
other  beyond  what  those  circumstances  require.  Though  it  has 
been  said  by  high  authority  (see  M'Connell  v.  Hector,  3  Bos.  & 
P.  113,  and  Esposito  v.  Bowden,  7  E.  &  B.  763,  779,)  to  aim  at 
curtailing  the  commercial  resources  of  the  enemy,  it  has,  accord- 
ing to  other  and  older  authorities,  the  wider  object  of  preventing 
unregulated  intercourse  with  the  enemy  altogether.  Through 
the  Royal  licence,  which  validates  such  intercourse  and  such 
trade,  they  are  brought  under  necessary  control.  "Without  such 
control  they  are  forbidden.  To  my  mind  the  rule  would  be  de- 
prived of  its  substantial  justification,  and  be  reduced  to  a  barren 
canon,  if  it  were  held,  in  circumstances  such  as  these,  that  it 
had  no  application  by  reason  of  the  mere  fact  that  the  company 
is  registered  in  London. 

My  Lords,  having  regard  to  the  foregoing  considerations,  I 
think  the  law  on  the  subject  may  be  summarized  in  the  following 
propositions : — 

(1.)     A  company  incorporated  in  the  United  Kingdom  is  a 


444  ENEMY  CHARACTER. 

legal  entity,  a  creation  of  law  with  the  status  and  capacity  which 
the  law  confers.  It  is  not  a  natural  person  with  mind  or  con- 
science. To  use  the  language  of  Buckley  L.  J.,  "it  can  be 
neither  loyal  nor  disloyal.  It  can  be  neither  friend  nor  enemy." 

(2.)  Such  a  company  can  only  act  through  agents  properly 
authorized,  and  so  long  as  it  is  carrying  on  business  in  this  coun- 
try through  agents  so  authorized  and  residing  in  this  or  a 
friendly  country  it  is  prima  facie  to  be  regarded  as  a  friend, 
and  all  His  Majesty's  lieges  may  deal  with  it  as  such. 

(3.)  Such  a  company  may,  however,  assume  an  enemy  char- 
acter. This  will  be  the  case  if  its  agents  or  the  persons  in  de 
facto  control  of  its  affairs,  whether  authorized  or  not,  are  resi- 
dent in  an  enemy  country,  or,  wherever  resident,  are  adhering 
to  the  enemy  or  taking  instructions  from  or  acting  under  the 
control  of  enemies.  A  person  knowingly  dealing  with  the  com- 
pany in  such  a  case  is  trading  with  the  enemy. 

(4.)  The  character  of  individual  shareholders  cannot  of  it- 
self affect  the  character  of  the  company.  This  is  admittedly  so 
in  times  of  peace,  during  which  every  shareholder  is  at  liberty 
to  exercise  and  enjoy  such  rights  as  are  by  law  incident  to  his 
status  as  shareholder.  It  would  be  anomalous  if  it  were  not  so 
also  in  a  time  of  war,  during  which  all  such  rights  and  privileges 
are  in  abeyance.  The  enemy  character  of  individual  share- 
holders and  their  conduct  may,  however,  be  very  material  on  the 
question  whether  the  company's  agents,  or  the  persons  in  de 
facto  control  of  its  affairs,  are  in  fact  adhering  to,  taking  in- 
structions from,  or  acting  under  the  control  of  enemies.  This 
materiality  will  vary  with  tlie  number  of  shareholders  who  are 
enemies  and  the  value  of  their  holdings.  The  fact,  if  it  be  the 
fact,  that  after  eliminating  the  enemy  shareholders  the  num- 
ber of  shareholders  remaining  is  insufficient  for  the  purpose  of 
holding  meetings  of  the  company  or  appointing  directors  or 
other  officers  may  well  raise  a  presumption  in  this  respect.  For 
example,  in'  the  present  case,  even  if  the  secretary  had  been  fully 
authorized  to  manage  the  affairs  of  the  company  and  to  institute 
legal  proceedings  on  its  behalf,  the  fact  that  he  held  one  share 
only  out  of  25,000  shares,  and  was  the  only  shareholder  who " 
was  not  an  enemy,  might  well  throw  on  the  company  the  onus 
of  proving  that  he  was  not  acting  under  the  control  of,  taking 
his  instructions  from,  or  adhering  to  the  King's  enemies  in  such 
manner  as  to  impose  an  enemy  character  on  the  company  itself. 
It  is  an  a  fortiori  case  when  the  secretary  is  without  authority 


DAIMLER  CO.  v.  CONTINENTAL  TYRE  &c.  CO.    445 

and  necessarily  depends  for  the  validity  of  all  he  does  on  the 
subsequent  ratification  of  enemy  shareholders.  The  circum- 
stances of  the  present  case  were,  therefore,  such  as  to  require 
close  investigation  and  preclude  the  propriety  of  giving  leave  to 
sign  judgment  under  Order  xiv.,  r.  1. 

(5.)  In  a  similar  way  a  company  registered  in  the  United 
Kingdom,  but  carrying  on  business  in  a  neutral  country  through 
agents  properly  authorized  and  resident  here  or  in  the  neutral 
country,  is  prima  facie  to  be  regarded  as  a  friend,  but  may, 
through  its  agents  or  persons  in  de  facto  control  of  its  affairs, 
assume  an  enemy  character. 

(6.)  A  company  registered  in  the  United  Kingdom  but 
carrying  on  business  in  an  enemy  country  is  to  be  regarded  as 
an  enemy. 

My  Lords,  the  foregoing  prepositions  are  not  only  consistent 
with  the  authorities  cited  in  argument,  and  in  particular  with 
what  was  said  in  this  House  in  Janson  v.  Driefontein  Consoli- 
dated Mines,  [1902]  A.  C.  484,  but  they  have,  I  think,  the 
advantage  of  affording  convenient  and  intelligible  guidance  to 
the  public  on  questions  of  trading  with  the  enemy.  It  would  be 
a  misfortune  if  the  law  were  such  that  during  war  every  one 
proposing  to  deal  with  a  British  company  had  to  examine  the 
character  of  its  shareholders  and  decide  whether  the  number  of 
the  enemy  shareholders  coupled  with  the  value  of  their  holdings 
were  such  as  to  impose  an  enemy  character  on  the  company  it- 
self. It  would  be  still  more  unfortunate  if  this  question  were  a 
question  for  the  jury  in  each  particular  case.  No  one  could 
maintain  that  a  company  had  assumed  an  enemy  character  mere- 
ly because  it  had  a  few  enemy  shareholders.  It  might  possibly 
be  contended  that  it  assumed  an  enemy  character  when  its 
enemy  shareholders  amounted  to  (say)  one-half,  three-fifths,  or 
five-eighths  of  the  whole,  but  how  if  the  one-half,  three-fifths,  or 
five-eighths  held  only  one-sixth,  one-fifth,  or  one-fourth  of  the 
shares  ?  The  Legislature  might,  but  no  Court  could  possibly,  lay 
down  a  hard  and  fast  rule,  and,  if  no  such  rule  were  laid  down, 
how  could  any  one  proposing  to  deal  with  the  company  ascer- 
tain whether  he  was  or  was  not  proposing  to  deal  with  the  enemy  ? 

My  Lords,  I  desire  to  add  this.  It  was  suggested  in  argu- 
ment that  acts  otherwise  lawful  might  be  rendered  unlawful  by 
the  fact  that  they  might  tend  to  the  enrichment  of  the  enemy 
when  the  war  was  over.  I  entirely  dissent  from  this  view.  I 
see  no  reason  why  a  company  should  not  trade  merely  because 


446  ENEMY  CHARACTER. 

enemy  shareholders  may  after  the  war  become  entitled  to  their 
proper  share  of  the  profits  of  such  trading.  I  see  no  reason  why 
the  trustee  of  an  English  business  with  enemy  cestuis  que  trust 
should  not  during  the  war  continue  to  carry  on  the  business,  al- 
though after  the  war  the  profits  may  go  to  persons  who  are  now 
enemies,  or  why  moneys  belonging  to  an  enemy  but  in  the  hands 
of  a  trustee  in  this  country  should  not  be  paid  into  Court  and  in- 
vested in  Government  stock  or  other  securities  for  the  benefit  of 
the  persons  entitled  after  the  war.  The  contention  appears  to 
me  to  extend  the  principle  on  which  trading  with  the  enemy  is 
forbidden  far  beyond  what  reason  can  approve  or  the  law  can 
warrant.  In  early  days  the  King's  prerogative  probably  ex- 
tended to  seizing  enemy  property  on  land  as  well  as  on  sea.  As 
to  property  on  land,  this  prerogative  has  long  fallen  into  disuse. 
Subject  to  any  legislation  to  the  contrary  or  anything  to  the  con- 
trary contained  in  the  treaty  of  peace  when  peace  comes,  enemy 
property  in  this  country  will  be  restored  to  its  owners  after  the 
war  just  as  property  in  enemy  countries  belonging  to  His  Ma- 
jesty's subjects  will  or  ought  to  be  restored  to  them  after  the 
war.  In  the  meantime  it  would  be  lamentable  if  the  trade  of 
this  country  were  fettered,  businesses  shut  down,  or  money  al- 
lowed to  remain  idle  in  order  to  prevent  any  possible  benefit  ac- 
cruing thereby  to  enemies  after  peace.  The  prohibition  against 
doing  anything  for  the  benefit  of  an  enemy  contemplates  his 
benefit  during  the  war  and  not  the  possible  advantage  he  may 
gain  when  peace  comes.  .  .  . 

Order  of  the  Court  of  Appeal  reversed  and  action  dismissed, 
and  all  orders  made  therein  discharged. 

[All  the  judges  agreed  that  the  secretary  of  the  respondent 
company  had  no  authority  to  act  in  the  present  case.  Lord 
Sumner,  Lord  Mersey  and  Lord  Kinnear  concurred  in  the  judg- 
ment of  Lord  Parker  of  Waddington.  Lord  Atkinson,  Lord 
Parmoor  and  Lord  Shaw  of  Dunfermline  agreed  with  the  opin- 
ion expressed  by  Lord  Reading  in  the  Court  of  Appeals  that  a 
company  registered  and  conducting  business  in  England  was 
not  affected  with  enemy  character  merely  by  the  fact  that  its 
directors  and  shareholders  were  enemies.] 


THE  HAMBORN.  447 

THE  HAMBORN. 

JUDICIAL  COMMITTKE  OF  THE  PRIVY  COUNCIL  OF  GREAT  BRITAIN.    1919. 
Law  Reports  [1919]  A.  C.  993. 

Appeal  from  a  decree  of  the  Admiralty  Division  ,in  Prize), 
[1918]  P.  19. 

The  appellants  were  a  company  incorporated  according  to 
the  laws  of  the  Netherlands  and  were  the  owners  of  the  steam- 
ship Hamborn.  They  appealed  from  a  judgment  of  the  Presi- 
dent (Sir  Samuel  Evans)  condemning  that  ship  as  prize  on  the 
ground  that  she  was  enemy  property.  .  .  .  [All  the  shares  in 
the  appellant  company  were  owned  by  two  other  companies  in- 
corporated in  the  Netherlands,  and  all  the  shares  in  these  two 
Dutch  companies  were  owned  by  German  companies,  all  the  di- 
rectors in  which  were  Germans  resident  in  Germany  and  all  the 
shares  in  which  were  owned  in  Germany.  Two  Germans  resi- 
dent in  Rotterdam  were  in  charge  of  the  business  of  the  German 
companies,  one  of  which  had  the  management  of  the  appellant 
company.] 

LORD  SUMNER.  .  .  .  Sufficient  details  are  given  of  the 
ship's  regular  trade  to  make  it  quite  clear  what  she  was  bought 
for.  Her  trade  was,  with  unimportant  exceptions,  to  load  ore 
at  Spanish  ore  ports  for  Rotterdam,  going  out  with  coal  from 
South  Wales  to  French  ports  to  save  a  ballast  voyage.  When  the 
war  broke  out,  she  was  sent  across  the  Atlantic  and  was  trading 
on  time  charter  there  when  she  was  captured.  .  .  .  Their 
Lordships  entertain  no  doubt  that  the  Hamborn  was  bought  and 
employed  as  a  useful  tender  to  the  German  iron  industry  on  the 
Ruhr,  that  her  other  trading  was  ancillary,  and  that  her  Dutch 
flag,  Dutch  ownership  and  local  management  at  Rotterdam  were 
adopted  merely  for  the  convenience  of  her  German  import  trade. 
For  some  purposes  no  doubt  she  belonged  to  and  was  counted  as 
part  of  the  mercantile  marine  of  the  kingdom  of  the  Netherlands, 
but  in  substance  she  and  her  trade  were  a  support  to  and  a  part 
of  the  commerce  and  the  shipping  of  the  German  Empire.  The 
legal  effect  of  all  this,  particularly  on  her  liability  to  capture, 
is  another  matter. 

The  true  question  is  one,  in  the  President's  phrase,  of  deter- 
mining the  neutral  or  enemy  character  of  the  Hamborn.  Unless 


448  ENEMY  CHARACTER. 

either  her  Dutch  flag  or  the  country  of  incorporation  of  the 
owning  company  or  the  place  of  residence  of  her  subordinate 
managers  or  some  or  all  of  these  matters  be  conclusive,  she  bore 
a  character  which  justified  her  condemnation,  for  she  formed 
part  of  that  enemy  commerce  which  a  belligerent  is  entitled  to 
disable  and  restrain. 

It  may  be  as  well  to  put  on  one  side  certain  aspects  of  the 
effect  of  using  a  national  flag,  which  are  not  now  relevant  and 
are  really  only  false  analogies.  If  a  ship  for  her  own  purposes 
has  assumed  and  used  a  national  flag  to  which  she  is  not  really 
entitled,  she  may  in  some  circumstances  be  held  bound  by  the 
nationality  which  she  has  thus  assumed  without  warrant.  If 
a  ship  lawfully  flies  a  national  flag,  she  may  in  some  cases  be 
said,  by  a  figure  of  speech,  to  derive  from  her  flag  the  system 
of  municipal  law,  by  which  her  contracts  or  her  civil  liabilities 
are  governed.  In  the  first  case  she  cannot  deny  as  against 
captors  the  national  character,  which  she  has  irregularly  taken ; 
in  the  second,  she  derives  from  the  national  character,  which  is 
actually  hers  and  is  indicated  by  her  flag,  the  system  of  legal 
rights  and  liabilities  applicable  to  her.  Neither  case  touches 
the  position,  where  in  a  question  with  captors  it  becomes  nec- 
essary to  consider  whether  the  ship,  though  in  contemplation 
of  technical  municipal  law  a  neutral  ship,  of  neutral  registry, 
and  entitled  to  the  benefits  of  a  neutral  flag,  is,  in  the  view  of 
the  law  of  nations,  a  ship  of  enemy  character  and  liable  to  be 
treated  in  accordance  with  that  character.  If  the  case  turned 
on  her  user  de  facto  at  the  time  of  capture  it  would  be  simple : 
so  it  would  be,  if  her  owners  were  natural  persons  of  neutral 
nationality  de  jure,  neither  adhering  to  the  enemy  nor  allowing 
their  chattel  to  be  used  in  enemy  service.  The  present  case  is 
more  complex.  The  criteria  for  deciding  enemy  character  in 
the  case  of  an  artificial  person  differ  from  those  applicable  to  a 
natural  person,  since  in  the  nature  of  things  conduct,  which  is 
one  of  the  most  important  matters,  can  in  the  former  case  only 
be  the  conduct  of  those  who  act  for  or  in  the  name  of  the  artifi- 
cial person.  It  was  decided  in  the  case  of  Daimler  Company  v. 
Continental  Tyre  and  Rubber  Company,  [1916]  2  A.  C.  307,1 
that,  in  the  case  of  an  incorporated  company,  the  right  and 
power  of  control  may  form  a  true  criterion,  the  control,  that  is, 
of  those  persons  who  are  the  active  directors  of  the  company 
and  whose  orders  its  officers  must  obey,  or  the  control  of  those 
persons  who  in  their  turn  are  the  masters  of  the  directorate  and 


NOTE.  449 

make  or  unmake  it  by  the  use  of  the  controlling  majority  of 
votes.  The  application  of  this  test  presents  no  difficulty  here, 
for  no  living  person  and  no  sentient  mind  exercised  or  possessed 
any  control  over  the  Hamborn  Steamship  Company,  except  per- 
sons and  minds  of  enemy  nationality.  The  residence  of  the  two 
German  managers  in  Rotterdam,  if  not  altogether  immaterial, 
at  any  rate  cannot  affect  the  result,  since  the  question  is  not  one 
of  trading  with  enemy  subjects,  resident  or  carrying  on  business 
in  a  neutral  country,  but  is  one  of  the  character  of  an  artificial 
persona,  whose  trade  is  carried  on  for  it  under  the  supreme  di- 
rection and  control  of  enemies  born.  Their  Lordships  agree 
with  a  passage  of  the  President's  judgment,  which  sufficiently 
represents  the  true  gist  of  his  reasoning,  [1918]  P.  25: — "The 
centre  and  whole  effective  control  of  the  business  of  the  Ham- 
born  Steamship  Company  was  in  Germany.  Having  regard  to 
these  facts,  the  vessel  must  be  regarded  in  this  Court  as  belong- 
ing to  German  subjects,"  in  a  claim  by  captors  for  condemnation. 

Their  Lordships  will  humbly  advise  His  Majesty  that  this 
appeal  should  be  dismissed  with  costs. 

NOTE. — It  is  a  general  rule  of  law  that  a  corporation  is  a  citizen  of 
that  jurisdiction  under  the  laws  of  which  it  was  formed,  and  the  citi- 
zenship or  nationality  of  its  officers  or  shareholders  is  immaterial.  In 
the  exercise  of  its  war  rights  a  belligerent  will  observe  the  corporate 
fiction  when  it  is  to  its  interest  to  do  so.  In  The  Pedro  (1899),  175 
U.  S.  354,  a  vessel  which  belonged  to  a  corporation  formed  in  Spain 
and  which  had  a  Spanish  registry  and  license  and  was  manned  by 
Spanish  officers  and  crew  was  held  to  be  a  Spanish  ship  although  all 
the  shareholders  in  the  corporation  were  British.  Early  in  the  Great 
War,  the  courts  began  to  disregard  the  corporate  fiction  and  to  make 
the  character  of  the  corporation  depend  upon  the  character  of  the  real 
parties  in  interest  or  the  persons  by  whom  it  was  controlled.  In  The 
Tommi  and  The  Rothersand  (1914),  L.  R.  [1914],  P.  251,  the  court 
intimated  that  if  a  British  ship  were  owned  by  a  British  company, 
all  the  shareholders  being  alien  enemies,  the  court  would  determine 
the  character  of  the  ship  by  the  character  of  the  individuals  who  com- 
posed the  corporation.  A  mining  company  which  owned  mines  in 
Germany  was  incorporated  in  France  for  the  purpose  of  selling  the 
products  of  its  German  mines  to  persons  in  Africa.  One  of  its  four 
directors  was  a  German,  and  eight-tenths  of  its  stock  was  held  by  Ger- 
mans. In  Mines  of  Barbary  v.  Raymond  (1916),  44  Clunet,  226,  the 
Court  of  Paris  held  that  the  corporation  was  under  German  control 
and  could  not  sue  in  a  French  court,  but  in  The  Poona  (1915),  1  Br. 
&  Col.  P.  C.  275,  in  which  the  character  of  a  similar  corporation  owning 
the  cargo  was  involved,  the  Prize  Court  clung  to  the  corporate  fic- 
51  tion.  A  vessel  flying  the  British  flag  but  under  such  control  of  an 


450  ENEMY  CHARACTER. 

enemy  corporation  that  the  British  ownership  was  merely  nominal 
was  treated  as  an  enemy  vessel,  The  St.  Tudno  (1916),  L.  R.  [1916] 
P.  291.  See  also  In  re  Hilckes  (1916),  L.  R.  [1917]  1  K.  B.  48; 
Clapham  Steamship  Co.  v.  Naamlooze  &c  Vulcaan  (1917),  L.  R.  [1917] 
2  K.  B.  639;  Young,  "The  Nationality  of  a  Juristic  Person,"  Harvard 
Law  Revieio,  XXII,  1;  Piciotto,  "Alien  Enemy  Persons,  Firms  and 
Corporations  in  English  Law,"  Yale  Law  Journal,  XXVII,  167;  Schus- 
ter, "The  Nationality  and  Domicile  of  Trading  Corporations,"  Grotius 
Society,  Proceedings,  II,  57;  notes  and  comments  in  Yale  Law  Jour- 
nal, XXVII,  108,  and  Harvard  Law  Review,  XXVIII,  629  and  XXX, 
83;  Hyde,  II,  567. 


SECTION  3.    PROPERTY. 

THIRTY  HOGSHEADS   OF   SUGAR,   BENTZON,   CLAIM- 
ANT, v.  BOYLE  AND  OTHERS. 

SUPREME  COURT  OF  THE  UNITED  STATES.    1815. 
9  Cranch,  191. 

Appeal  from  the  sentence  of  the  Circuit  Court  for  the  dis- 
trict of  Maryland,  condemning  30  hogsheads  of  sugar,  the  prop- 
erty of  the  Claimant,  a  Danish  subject,  it  being  the  produce  of 
his  plantation  in  Santa  Cruz,  and  shipped  after  the  capture  of 
that  island  by  the  British,  to  a  house  in  London  for  account  and 
risk  of  the  Claimant,  who  was  a  Danish  officer  and  the  second 
in  authority  in  the  government  of  the  island  before  its  capture ; 
and  who,  shortly  after  the  capture,  withdrew,  and  has  since  re- 
sided in  the  United  States  and  in  Denmark.  By  the  articles  of 
capitulation,  the  inhabitants  were  permitted  to  retain  their  prop- 
erty, but  could  only  ship  the  produce  of  the  island  to  Great 
Britain.  This  sugar  was  captured  in  July,  1812,  after  the  dec- 
laration of  war  by  the  United  States  against  Great  Britain,  and 
libelled  as  British  property.  .  .  . 

MARSHALL,  Ch.  J.,  delivered  the  opinion  of  the  Court.    .    .    . 

Some  doubt  has  been  suggested  whether  Santa  Cruz,  while  in 
the  possession  of  Great  Britain,  could  properly  be  considered  as 
a  British  island.  But  for  this  doubt  there  can  be  no  foundation. 
Although  acquisitions  made  during  war  are  not  considered  as 
permanent  until  confirmed  by  treaty,  yet  to  every  commercial 
and  belligerent  purpose,  they  are  considered  as  a  part  of  the  do- 


THIRTY  HOGSHEADS  OF  SUGAR  v.  BOYLE.     451 

main  of  the  conqueror,  so  long  as  he  retains  the  possession  and 
government  of  them.  The  island  of  Santa  Cruz,  after  its  capitu- 
lation, remained  a  British  island  until  it  was  restored  to  Den- 
mark. 

Must  the  produce  of  a  plantation  in  that  island,  shipped  by 
the  proprietor  himself,  who  is  a  Dane  residing  in  Denmark,  be 
considered  as  British,  and  therefore  enemy  property  ? 

In  arguing  this  question,  the  counsel  for  the  Claimant  has 
made  two  points. 

1.  That  this  case  does  not  come  within  the  rule  applicable  to 
shipments  from  an  enemy  country,  even  as  laid  down  in  the 
British  Courts  of  admiralty. 

2.  That  the  rule  has  not  been  rightly  laid  down  in  those 
Courts,  and  consequently  will  not  be  adopted  in  this. 

1.  Does  the  rule  laid  down  in  the  British  Courts  of  admiralty 
embrace  this  case? 

It  appears  to  the  Court  that  the  case  of  the  Phoenix  [5  C.  Rob. 
20]  is  precisely  in  point.  In  that  case  a  vessel  was  captured  on 
a  voyage  from  Surinam  to  Holland,  and  a  part  of  the  cargo  was 
claimed  by  persons  residing  in  Germany,  then  a  neutral  country, 
as  the  produce  of  their  estates  in  Surinam. 

The  counsel  for  the  captors  considered  the  law  of  the  case  as 
entirely  settled.  The  counsel  for  the  Claimant  did  not  contro- 
vert this  position.  They  admitted  it;  but  endeavoured  to  ex- 
tricate their  case  from  the  general  principle  by  giving  it  the 
protection  of  the  treaty  of  Amiens.  In  pronouncing  his  opinion, 
sir  William  Scott  lays  down  the  general  rule  thus :  ' '  Certainly 
nothing  can  be  more  decided  and  fixed,  as  the  principle  of  this 
Court  and  of  the  Supreme  Court,  upon  very  solemn  arguments, 
than  that  the  possession  of  the  soil  does  impress  upon  the 
owner  the  character  of  the  country,  as  far  as  the  produce  of  that 
plantation  is  concerned,  in  its  transportation  to  any  other  coun- 
try, whatever  the  local  residence  of  the  owner  may  be.  This 
has  been  so  repeatedly  decided,  both  in  this  and  the  superior 
Court,  that  it  is  no  longer  open  to  discussion.  No  question  can 
be  made  on  the  point  of  law,  at  this  day." 

Afterwards,  in  the  case  of  the  Vrow  Anna  Catharina,  [5  C. 
Rob.,  161]  sir  William  Scott  lays  down  the  rule,  and  states  its 
reason.  "It  cannot  be  doubted,"  he  says,  "that  there  are  trans- 
actions so  radically  and  fundamentally  national  as  to  impress 
the  national  character,  independent  of  peace  or  war,  and  the 
local  residence  of  the  parties.  The  produce  of  a  person's  own 


452  ENEMY  CHARACTER. 

plantation  in  the  colony  of  the  enemy,  though  shipped  in  time  of 
peace,  is  liable  to  be  considered  as  the  property  of  the  enemy, 
by  reason  that  the  proprietor  has  incorporated  himself  with  the 
permanent  interests  of  the  nation  as  a  holder  of  the  soil,  and  is 
to  be  taken  as  a  part  of  that  country,  in  that  particular  trans- 
action, independent  of  his  own  personal  residence  and  occupa- 
tion." 

This  rule  laid  down  with  so  much  precision,  does  not,  it  is 
contended,  embrace  Mr.  Bentzon's  claim,  because  he  has  not 
11  incorporated  himself  with  the  permanent  interests  of  the  na- 
tion." He  acquired  the  property  while  Santa  Cruz  was  a  Dan- 
ish colony,  and  he  withdrew  from  the  island  when  it  became 
British. 

This  distinction  does  not  appear  to  the  Court  to  be  a  sound 
one.  The  identification  of  the  national  character  of  the  owner 
with  that  of  the  soil,  in  the  particular  transaction,  is  not  placed 
on  the  dispositions  with  which  he  acquires  the  soil,  or  on  his  gen- 
eral character.  The  acquisition  of  land  in  Santa  Cruz  binds 
him,  so  far  as  respects  that  land,  to  the  fate  of  Santa  Cruz, 
whatever  its  destiny  may  be.  While  that  island  belonged  to 
Denmark,  the  produce  of  the  soil,  while  unsold,  was,  according 
to  this  rule,  Danish  property,  whatever  might  be  the  general 
character  of  the  particular  proprietor.  When  the  island  became 
British,  the  soil  and  its  produce,  while  that  produce  remained 
unsold,  were  British. 

The  general  commercial  or  political  character  of  Mr.  Bentzon 
could  not,  according  to  this  rule,  affect  this  particular  trans- 
action. Although  incorporated,  so  far  as  respects  his  general 
character,  with  the  permanent  interests  of  Denmark,  he  was  in- 
corporated, so  far  as  respected  his  plantation  in  Santa  Cruz, 
with  the  permanent  interests  of  Santa  Cruz,  which  was,  at  that 
time,  British ;  and  though  as  a  Dane,  he  was  at  war  with  Great 
Britain,  and  an  enemy,  yet,  as  a  proprietor  of  land  in  Santa 
Cruz,  he  was  no  enemy:  he  could  ship  his  produce  to  Great 
Britain  in  perfect  safety. 

The  case  is  certainly  within  the  rule  as  laid  down  in  the 
British  Courts.  The  next  inquiry  is :  how  far  will  that  rule  be 
adopted  in  this  country  ? 

The  law  of  nations  is  the  great  source  from  which  we  derive 
those  rules,  respecting  belligerent  and  neutral  rights,  which  are 
recognized  by  all  civilized  and  commercial  states  throughout 
Europe  and  America.  This  law  is  in  part  unwritten,  and  in  part 


THIRTY  HOGSHEADS  OF  SUGAR  v.  BOYLE.     453 

conventional.  To  ascertain  that  which  is  unwritten,  we  resort 
to  the  great  principles  of  reason  and  justice :  but,  as  these  prin- 
ciples will  be  differently  understood  by  different  nations  under 
different  circumstances,  we  consider  them  as  being,  in  some  de- 
gree, fixed  and  rendered  stable  by  a  series  of  judicial  decisions. 
The  decisions  of  the  Courts  of  every  country,  so  far  as  they  are 
founded  upon  a  law  common  to  every  country,  will  be  received, 
not  as  authority,  but  with  respect.  The  decisions  of  the  Courts 
of  every  country  show  how  the  law  of  nations,  in  the  given  case, 
is  understood  in  that  country,  and  will  be  considered  in  adopt- 
ing the  rule  which  is  to  prevail  in  this. 

Without  taking  a  comparative  view  of  the  justice  or  fairness 
of  the  rules  established  in  the  British  Courts,  and  of  those  estab- 
lished in  the  Courts  of  other  ^nations,  there  are  circumstances 
not  to  be  excluded  from  consideration,  which  give  to  those  rules 
a  claim  to  our  attention  that  we  cannot  entirely  disregard.  The 
United  States  having,  at  one  time,  formed  a  component  part  of 
the  British  empire,  their  prize  law  was  our  prize  law.  When 
we  separated,  it  continued  to  be  our  prize  law,  so  far  as  it  was 
adapted  to  our  circumstances  and  was  not  varied  by  the  power 
which  was  capable  of  changing  it. 

It  will  not  be  advanced,  in  consequence  of  this  former  relation 
between  the  two  countries,  that  any  obvious  misconstruction  of 
public  law  made  by  the  British  Courts,  will  be  considered  as 
forming  a  rule  for  the  American  Courts,  or  that  any  recent 
rule  of  the  British  Courts  is  entitled  to  more  respect  than  the 
recent  rules  of  other  countries.  But  a  case  professing  to  be  de- 
cided on  ancient  principles  will  not  be  entirely  disregarded,  un- 
less it  be  very  unreasonable,  or  be  founded  on  a  construction 
rejected  by  other  nations. 

The  rule  laid  down  in  the  Phoenix  is  said  to  be  a  recent  rule, 
because  a  case  solemnly  decided  before  the  lords  commissioners 
in  1783,  is  quoted  in  the  margin  as  its  authority.  But  that  case 
is  not  suggested  to  have  been  determined  contrary  to  former 
practice  or  former  opinions.  Nor  do  we  perceive  any  reason  for 
supposing  it  to  be  contrary  to  the  rule  of  other  nations  in  a 
similar  case. 

The  opinion  that  the  ownership  of  the  soil  does,  in  some' de- 
gree, connect  the  owner  with  the  property,  so  far  as  respects  that 
soil,  is  an  opinion  which  certainly  prevails  very  extensively.  It 
is  not  an  unreasonable  opinion.  Personal  property  may  follow 
the  person  anywhere;  and  its  character,  if  found  on  the  ocean, 


454  ENEMY  CHARACTER. 

may  depend  on  the  domicil  of  the  owner.  But  land  is  fixed. 
Wherever  the  owner  may  reside,  that  land  is  hostile  or  friendly 
according  to  the  condition  of  the  country  in  which  it  is  placed. 
It  is  no  extravagant  perversion  of  principle,  nor  is  it  a  violent 
offense  to  the  course  of  human  opinion  to  say  that  the  propri- 
etor, so  far  as  respects  his  interest  in  this  land,  partakes  of  its 
character;  and  that  the  produce,  while  the  owner  remains  un- 
changed, is  subject  to  the  same  disabilities.  In  condemning  the 
sugars  of  Mr.  Bentzon  as  enemy  property,  this  Court  is  of  opin- 
ion that  there  was  no  error,  and  the  sentence  is  affirmed  with 
costs. 


THE  PRIZE  CASES. 

THE  BRIG  AMY  WARWICK.     THE  SCHOONER  CREN- 

SHAW.    THE  BARQUE  HIAWATHA.     THE 

SCHOONER  BRILLIANTE. 

SUPBEME  COTJBT   OF  THE  UNITED   STATES.      1863. 

2  Black.  635. 
[The  facts  and  first  part  of  the  opinion  are  printed  ante,  378.] 

MR.  JUSTICE  GRIER.  ...  II.  We  come  now  to  the  consid- 
eration of  the  second  question.  What  is  included  in  the  term 
"enemies'  property"? 

Is  the  property  of  all  persons  residing  within  the  territory 
of  the  States  now  in  rebellion,  captured  on  the  high  seas,  to  be 
treated  as  "enemies'  property"  whether  the  owner  be  in  arms 
against  the  Government  or  not? 

The  right  of  one  belligerent  not  only  to  coerce  the  other  by 
direct  force,  but  also  to  cripple  his  resources  by  the  seizure  or 
destruction  of  his  property,  is  a  necessary  result  of  a  state  of 
war.  Money  and  wealth,  the  products  of  agriculture  and  com- 
merce, are  said  to  be  the  sinews  of  war,  and  as  necessary  in  its 
conduct  as  numbers  and  physical  force.  Hence  it  is,  that  the 
laws  of  war  recognize  the  right  of  a  belligerent  to  cut  these 
sinews  of  the  power  of  the  enemy,  by  capturing  his  property  on 
the  high  seas. 

The  appellants  contend  that  the  term  "enemy"  is  properly 


THE  PRIZE  CASES.  455 

applicable  to  those  only  who  are  subjects  or  citizens  of  a  foreign 
State  at  war  with  our  own.  They  quote  from  the  pages  of  the 
common  law,  which  say,  "that  persons  who  wage  war  against 
the  King  may  be  of  two  kinds,  subjects  or  citizens.  The  former 
are  not  proper 'enemies,  but  rebels  and  traitors;  the  latter  are 
those  that  come  properly  under  the  name  of  enemies." 

They  insist,  moreover,  that  the  President  himself,  in  his  proc- 
lamation, admits  that  great  numbers  of  the  persons  residing 
within  the  territories  in  possession  of  the  insurgent  government 
are  loyal  in  their  feelings,  and  forced  by  compulsion  and  the 
violence  of  the  rebellious  and  revolutionary  party  and  its  "de 
facto  government"  to  submit  to  their  laws  and  assist  in  their 
scheme  of  revolution;  that  the  acts  of  the  usurping  government 
cannot  legally  sever  the  bond  of  their  allegiance;  they  have, 
therefore,  a  co-relative  right  to  claim  the  protection  of  the  gov- 
ernment for  their  persons  and  property,  and  to  be  treated  as 
loyal  citizens,  till  legally  convicted  of  having  renounced  their 
allegiance  and  made  war  against  the  Government  by  treasonably 
resisting  its  laws.  , 

They  contend,  also,  that  insurrection  is  the  act  of  individuals 
and  not  of  a  government  or  sovereignty;  that  the  individuals 
engaged  are  subjects  of  law.  That  confiscation  of  their  property 
can  be  effected  only  under  a  municipal  law.  That  by  the  law  of 
the  land  such  confiscation  cannot  take  place  without  the  convic- 
tion of  the  owner  of  some  offense,  and  finally  that  the  secession 
ordinances  are  nullities  and  ineffectual  to  release  any  citizen 
from  his  allegiance  to  the  national  Government,  and  consequent- 
ly that  the  Constitution  and  laws  of  the  United  States  are  still 
operative  over  persons  in  all  the  States  for  punishment  as  well 
as  protection. 

This  argument  rests  on  the  assumption  of  two  propositions, 
each  of  which  is  without  foundation  on  the  established  law  of 
nations.  It  assumes  that  where  a  civil  war  exists,  the  party  bel- 
ligerent claiming  to  be  sovereign  cannot,  for  some  unknown  rea- 
son, exercise  the  rights  of  belligerents,  although  the  revolution- 
ary party  may.  Being  sovereign,  he  can  exercise  only  sovereign 
rights  over  the  other  party.  The  insurgent  may  be  killed  on  the 
battlefield  or  by  the  executioner;  his  property  on  land  may  be 
confiscated  under  the  municipal  law;  but  the  commerce  on. the 
ocean,  which  supplies  the  rebels  with  means  to  support  the  war, 
cannot  be  made  the  subject  of  capture  under  the  laws  of  war, 
because  it  is  ' '  unconstitutional ! ! ! "  Now,  it  is  a  proposition 


456  ENEMY  CHARACTER. 

never  doubted,  that  the  belligerent  party  who  claims  to  be  sov- 
ereign may  exercise  both  belligerent  and  sovereign  rights,  (see 
4  Cr.,  272).  Treating  the  other  party  as  a  belligerent  and  using 
only  the  milder  modes  of  coercion  which  the  law  of  nations  has 
introduced  to  mitigate  the  rigors  of  war,  cannot  be  a  subject  of 
complaint  by  the  party  to  whom  it  is  accorded  as  a  grace  or 
granted  as  a  necessity.  We  have  shown  that  a  civil  war  such  as 
that  now  waged  between  the  Northern  and  Southern  States  is 
properly  conducted  according  to  the  humane  regulations  of 
public  law  as  regards  capture  on  the  ocean. 

Under  the  very  peculiar  Constitution  of  this  Government,  al- 
though the  citizens  owe  supreme  allegiance  to  the  Federal  Gov- 
ernment, they  owe  also  a  qualified  allegiance  to  the  State  in 
which  they  are  domiciled.  Their  persons  and  property  are  sub- 
ject to  its  laws. 

Hence,  in  organizing  this  rebellion,  they  have  acted  as  States 
claiming  to  be  sovereign  over  all  persons  and  property  within 
their  respective  limits,  and  asserting  a  right  to  absolve  their  citi- 
zens from  their  allegiance  to  the  Federal  Government.  Several 
of  these  States  have  combined  to  form  a  new  confederacy,  claim- 
ing to  be  acknowledged  by  the  world  as  a  sovereign  state.  Their 
right  to  do  so  is  now  being  decided  by  wager  of  battle.  The 
ports  and  territory  of  each  of  these  States  are  held  in  hostility 
to  the  General  Government.  It  is  no  loose,  unorganized  insur- 
rection, having  no  defined  boundary  or  possession.  It  has  a 
boundary  marked  by  lines  of  bayonets,  and  which  can  be  crossed 
only  by  force — south  of  this  line  is  enemies'  territory,  because 
it  is  claimed  and  held  in  possession  by  an  organized,  hostile  and 
belligerent  power. 

All  persons  residing  within  this  territory  whose  property  may 
be  used  to  increase  the  revenues  of  the  hostile  power  are,  in  this 
contest,  liable  to  be  treated  as  enemies,  though  not  foreigners. 
They  have  cast  off  their  allegiance  and  made  war  on  their  Gov- 
ernment, and  are  none  the  less  enemies  because  they  are  traitors. 

But  in  defining  the  meaning  of  the  term  ' '  enemies '  property, ' ' 
we  will  be  led  into  error  if  we  refer  to  Fleta  and  Lord  Coke  for 
their  definition  of  the  word  "enemy."  It  is  a  technical  phrase 
peculiar  to  prize  courts,  and  depends  upon  principles  of  public 
policy  as  distinguished  from  the  common  law. 

Whether  property  be  liable  to  capture  as  "enemies'  prop- 
erty" does  not  in  any  manner  depend  on  the  personal  allegiance 
of  the  owner.  "  It  is  the  illegal  traffic  that  stamps  it  as  '  enemies ' 


NOTE.  457 

property. '  It  is  of  no  consequence  whether  it  belongs  to  an  ally 
or  a  citizen.  8  Or.,  384.  The  owner,  pro  hoc  vice,  is  an  enemy." 
3  Wash.  C.  C.  R.,  183. 

The  produce  of  the  soil  of  the  hostile  country,  as  well  as  other 
property  engaged  in  the  commerce  of  the  hostile  power,  as  the 
source  of  its  wealth  and  strength,  are  always  regarded  as  legit- 
imate prize,  without  regard  to  the  domicile  of  the  owner,  and 
much  more  so  if  he  reside  and  trade  within  their  territory.  .  .  •. 

[MB.  JUSTICE  NELSON  delivered  a  dissenting  opinion,  in  which 
CHIEF  JUSTICE  TANEY  and  JUSTICES  CATRON  and  CLIFFORD  con- 
curred.] 

NOTE. — Property  may  acquire  an  enemy  character  even  though  the 
neutral  owner  thereof  resides  in  the  state  to  which  he  owes  allegiance. 
Property  in  enemy  territory  and  which  is  necessarily  associated  there- 
with is  enemy  property  regardless  of  ownership,  The  Phoenix  (1803), 
5  C.  Robinson,  20;  The  Jonge  Klassima  (1804),  5  Ib.  297;  The  Nina 
(1854).  Spinks,  276;  The  Friendschaft  (1819),  4  Wheaton,  105;  United 
States  v.  Farragut  (1875),  22  Wallace,  406;  Young  v.  United  States 
(1877),  97  U.  S.  39;  Briggs  v.  United  States  (1890),  25  Ct.  01.  126. 
It  is  employed  in  enemy  commerce  upon  the  same  footing  and  with 
the  same  advantages  as  the  property  of  the  enemy's  resident  subjects. 
It  thereby  strengthens  his  resources  and  hence  an  enemy  character 
is  attributed  to  it,  The  San  Jose  Indiano  (1814),  2  Gallison  268,  286, 
and  it  is  subject  to  the  same  treatment  as  other  enemy  property, 
Juragua  Iron  Co.  v.  United  States  (1909),  212  U.  S.  297,  unless  the 
owner  thereof  takes  prompt  measures  upon  the  outbreak  of  hostilities 
to  withdraw  his  property,  The  Gray  Jacket  (1867),  5  Wallace,  342. 
Enemy  territory  is  any  territory  which  the  enemy  controls  and  can 
use  for  purposes  of  war,  without  regard  to  the  title  by  which  he  holds 
it,  The  Gutenfels  (1916),  L.  R.  [1916]  2  A.  C.  112.  If  goods  manufac- 
tured in  an  enemy  country  and  ordered  and  paid  for  by  a  neutral 
purchaser  are  shipped  to  him  by  sea,  they  will  be  treated  as  enemy 
goods  until  actual  delivery,  The  United  States  (1916),  L.  R.  [1917] 
P.  30.  The  fact  that  the  produce  of  enemy  land  was  shipped  before 
the  outbreak  of  war  does  not  exempt  it  from  capture,  The  Vrow  Anna 
Catherina  (1804),  5  C.  Robinson,  161.  The  protection  extended  to 
foreigners  in  Turkey  does  not  permit  the  condemnation  of  their  goods 
as  the  produce  of  enemy  soil,  The  Asturian  (1916),  L.  R.  [1916]  P. 
150.  A  corporation  formed  in  Belgium  which  removed  its  office  to 
England  soon  after  the  outbreak  of  the  Great  War  did  not  become  an 
enemy  company  in  consequence  of  the  German  occupation  of  Belgium, 
Societe  Anonyme  Beige  des  Mines  d'Aljustrel  (Portugal)  v.  Anglo- 
Belgian  Agency,  Lt.  (1915),  L.  R.  [1915]  2  Ch.  409;  but  compare  Cen- 
tral India  Mining  Co.,  Ltd.  v.  Soci6t6  Coloniale  Anversoise  (1919), 
L.  R.  [1920]  1  K.  B.  753. 

It  has  been  customary  to  hold  that  the  national  character  of  a  ship 


458  ENEMY  CHARACTER. 

is  determined  by  the  flag  which  its  official  documents  show  it  to  be 
entitled  to  fly,  The  Marie  Glaeser  (1914),  L.  R.  [1914]  P.  218;  The 
Manchuria  (1905),  2  Hurst  and  Bray,  52.  This  was  a  definite  test, 
easy  of  application.  It  was  founded  however  upon  the  assumption 
that  no  country  would  issue  documents  to  a  vessel  not  owned,  at 
least  in  part,  by  its  own  citizens.  But  there  are  several  countries 
such  as  Argentine,  Chile,  Colombia,  Paraguay  and  possibly  others, 
which  document  vessels  owned  entirely  by  foreigners.  In  the  Great 
War  it  was  found  that  some  German  merchant  ships  were  documented 
under  Argentine  law  and  flew  the  Argentine  flag.  Hence  a  vessel's 
documents  are  not  a  conclusive  indication  of  its  national  character. 
In  The  Proton  (Egypt,  1916),  2  Br.  &  Col.  P.  C.  107,  affirmed  (1918), 
L.  R.  [1918]  A.  C.  578,  the  court  went  behind  the  ship's  documents  and 
determined  its  real  ownership  and  national  character.  In  order  to 
ascertain  whether  a  vessel  is  or  is  not  enemy  property,  the  court  will 
consider  all  the  circumstances  of  its  registration,  management  and 
employment.  See  The  Tommi  and  The  Rothersand  (1914),  L.  R. 
[1914]  P.  251;  The  Polzeath  (1916),  L.  R.  [1916]  P.  241;  The  St. 
Tudno  (1916),  L.  R.  [1916]  P.  261;  The  Solveig  (1915);  Journal  Of- 
flciel,  Nov.  12,  1915;  Mount,  "Prize  Cases  in  the  English  Courts  Aris- 
ing Out  of  the  Present  War,"  Columbia,  Law  Review,  XV,  316;  Bor- 
chard,  sec.  207;  Hyde,  II,  548,  562;  Moore,  Digest,  VII,  406. 


CHAPTER  XHI. 
THE  RULE  OF  NON-INTERCOURSE  WITH  ENEMIES. 

SECTION  1.    TRADE  WITH  THE  ENEMY. 

i 
THE  HOOP. 

HIGH  COURT  OF  ADMIRALTY  or  ENGLAND.    1799. 
1  C.  Robinson,  196. 

This  is  a  case  of  a  claim  of  several  British  merchants  for  goods 
purchased  on  their  account  in  Holland,  and  shipped  on  board 
a  neutral  vessel.  .  .  .  Mr.  Malcom  of  Glasgow,  and  several 
other  merchants  of  North  Britain,  had,  long  prior  to  hostilities, 
been  used  to  trade  extensively  with  Holland;  .  .  .  after  the 
irruption  of  the  French  into  Holland,  they  had  constantly  ap- 
plied for,  and  obtained  special  orders  of  his  majesty  in  council 
permitting  them  to  continue  that  trade ;  [but]  after  the  passing 
of  the  acts  of  parliament  35  G.  3.  c.  15.  §  80.,  36  G.  3.  c.  76.,  37 
G  3.  c.  12  .  .  .  it  was  apprehended  in  that  part  of  Great 
Britain,  that  by  these  acts  the  importation  of  such  goods  was 
made  legal:  but  for  the  greater  security,  they  still  made  appli- 
cation to  the  commissioners  of  customs  at  Glasgow,  to  know  what 
they  considered  to  be  the  interpretation  of  the  said  acts,  and 
whether  his  majesty's  license  was  still  necessary;  and  .  . 
were  informed,  under  the  opinion  of  the  law  advisers  of  the  said 
commissioners,  that  no  such  orders  of  council  were  necessary, 
and  that  all  goods  brought  from  the  United  Provinces  would  in 
future  be  entered  without  them ;  and  that  in  consequence  of  such 
information,  they  had  caused  the  goods  in  question  to  be  shipped 
at  Rotterdam  for  their  account;  ostensibly  documented  for 
Bergen  to  avoid  the  enemy's  cruisers.  .  .  . 

SIR  "W.  SCOTT  [LORD  STOWELL]  .  .  .  It  is  said  that  these 
circumstances  compose  a  case  entitled  to  great  indulgence ;  and 
I  do  not  deny  it.  But  if  there  is  a  rule  of  law  on  the  subject 

459 


460  THE  RULE  OF  NON-INTERCOURSE. 

binding  the  Court,  I  must  follow  where  that  rule  leads  me; 
though  it  leads  to  consequences  which  I  may  privately  regret, 
when  I  look  to  the  particular  intentions  of  the  parties. 

In  my  opinion  there  exists  such  a  general  rule  in  the  maritime 
jurisprudence  of  this  country,  by  which  all  trading  with  the 
public  enemy,  unless  with  the  permission  of  the  sovereign,  is 
interdicted.  It  is  not  a  principle  peculiar  to  the  maritime  law 
of  this  country;  it  is  laid  down  by  Bynkershoek  as  an  universal 
principle  of  law. — Ex  naturd  belli  commercia  inter  hostes  cessare 
non  est  dubitandum.  Quamvis  nulla  specialis  sit  commerciorum 
prohibitio,  ipso  tamen  jure  belli  commercia  esse  vetita,  ipsce  in- 
dictio-nes  bellorum  satis  declarant,  &c.  He  proceeds  to  observe, 
that  the  interests  of  trade,  and  the  necessity  of  obtaining  certain 
commodities  have  sometimes  so  far  overpowered  this  rule,  that 
different  species  of  traffic  have  been  permitted,  prout  e  re  sua, 
subditorumque  suorum  esse  censent  principes  (Bynk.  Q.  J.  P.  B. 
1,  c.  3).  But  it  is  in  all  cases  the  act  and  permission  of  the 
sovereign.  Wherever  that  is  permitted,  it  is  a  suspension  of  the 
state  of  war  quoad  Jwc.  It  is,  as  he  expresses  it,  pro  parte  sic 
bellum,  pro  parte  pax  inter  subditos  utriusque  principis.  It 
appears  from  these  passages  to  have  been  the  law  of  Holland; 
Valin,  1.  iii.,  tit.  6,  art.  3,  states  it  to  have  been  the  law  of  France, 
whether  the  trade  was  attempted  to  be  carried  on  in  national  or 
in  neutral  vessels;  it  will  appear  in  a  case  which  I  shall  have 
occasion  to  mention  (The  Fortuna),  to  have  been  the  law  of 
Spain ;  and  it  may,  I  think,  without  rashness  be  affirmed  to  have 
been  a  general  principle  of  law  in  most  of  the  countries  of 
Europe. 

By  the  law  and  constitution  of  this  country,  the  sovereign 
alone  has  the  power  of  declaring  war  and  peace — He  alone 
therefore  who  has  the  power  of  entirely  removing  the  state  of 
war,  has  the  power  of  removing  it  in  part,  by  permitting,  where 
he  sees  proper,  that  commercial  intercourse  which  is  a  partial 
suspension  of  the  war.  There  may  be  occasions  on  which  such  an 
intercourse  may  be  highly  expedient.  But  it  is  not  for  indi- 
viduals to  determine  on  the  expediency  of  such  occasions  on 
their  own  notions  of  commerce,  and  of  commerce  merely,  and 
possibly  on  grounds  of  private  advantage  not  very  reconcilable 
with  the  general  interest  of 'the  state.  It  is  for  the  state  alone, 
on  more  enlarged  views  of  policy,  and  of  all  circumstances  which 
may  be  connected  with  such  an  intercourse,  to  determine  when 
it  shall  be  permitted,  and  under  what  regulations.  In  my  opin- 


/        THE  HOOP.  461 

ion,  no  principle  ought  to  be  held  more  sacred  than  that  this 
intercourse  cannot  subsist  on  any  other  footing  than  that  of  the 
direct  permission  of  the  state.  Who  can  be  insensible  to  the  con- 
sequences that  might  follow,  if  every  person  in  a  time  of  war 
had  a  right  to  carry  on  a  commercial  intercourse  with  the  enemy, 
and  under  colour  of  that,  had  the  means  of  carrying  on  any 
other  species  of  intercourse  he  might  think  fit?  The  inconven- 
ience to  the  public  might  be  extreme;  and  where  is  the  incon- 
venience on  the  other  side,  that  the  merchant  should  be  com- 
pelled, in  such  a  situation  of  the  two  countries,  to  carry  on  his 
trade  between  them  (if  necessary)  under  the  eye  and  controul  of 
the  government,  charged  with  the  care  of  the  public  safety? 

Another  principle  of  law,  of  a  less  politic  nature,  but  equally 
general  in  its  reception  and  direct  in  its  application,  forbids  this 
sort  of  communication  as  fundamentally  inconsistent  with  the 
relation  at  that  time  existing  between  the  two  countries;  and 
that  is,  the  total  inability  to  sustain  any  contract  by  an  appeal 
to  the  tribunals  of  the  one  country,  on  the  part  of  the  subjects 
of  the  other.  In  the  law  of  almost  every  country,  the  character 
of  alien  enemy  carries  with  it  a  disability  to  sue,  or  to  sustain  in 
the  language  of  the  civilians  a  persona  standi  in  judicio.  The 
peculiar  law  of  our  own  country  applies  this  principle  with 
great  rigour. — The  same  principle  is  received  in  our  courts  of 
the  law  of  nations;  they  are  so  far  British  courts,  that  no  man 
can  sue  therein  who  is  a  subject  of  the  enemy,  unless  under  par- 
ticular circumstances  that  pro  hoc  vice  discharge  him  from  the 
character  of  an  enemy ;  such  as  his  coming  under  a  flag  of  truce, 
a  cartel,  a  pass,  or  some  other  act  of  public  authority  that  puts 
him  in  the  king's  peace  pro  hoc  vice.  But  otherwise  he  is  totally 
ex  lex;  even  in  the  case  of  ransoms  which  were  contracts,  but 
contracts  arising  ex  jure  belli,  and  tolerated  as  such,  the  enemy 
was  not  permitted  to  sue  in  his  own  proper  person  for  the  pay- 
ment of  the  ransom  bill;  but  the  payment  was  enforced  by  an 
action  brought  by  the  imprisoned  hostage  in  the  courts  of  his 
own  country,  for  the  recovery  of  his  freedom.  A  state  in  which 
contracts  cannot  be  enforced,  cannot  be  a  state  of  legal  com- 
merce. If  the  parties  who  are  to  contract  have  no  right  to  com- 
pel the  performance  of  the  contract,  nor  even  to  appear  in  a 
court  of  justice  for  that  purpose,  can  there  be  a  stronger  proof 
that  the  law  imposes  a  legal  inability  to  contract  ?  to  such  trans- 
actions it  gives  no  sanction;  they  have  no  legal  existence;  and 
the  whole  of  such  commerce  is  attempted  without  its  protection 


462  THE  RULE  OF  NON-INTERCOURSE. 

and  against  its  authority.  Bynkershoek  expresses  himself  with 
great  force  upon  this  argument  in  his  first  book,  chapter  7, 
where  he  lays  down  that  the  legality  of  commerce  and  the  mut- 
ual use  of  courts  of  justice  are  inseparable :  he  says,  that  cases  of 
commerce  are  undistinguishable  from  cases  of  any  other  species 
in  this  respect — Si  Jwsti  semel  permittas  actiones  exercere,  dif- 
ficile est  distinguere  ex  qua  causa  oriantur,  ncc  potui  animadver- 
tere  illam  distinotionem  unquam  usu  fuisse  servatam. 

Upon  these  and  similar  grounds  it  has  been  the  established 
rule  of  law  of  this  Court,  confirmed  by  the  judgment  of  the 
supreme  court,  that  a  trading  with  the  enemy,  except  under  a 
royal  license,  subjects  the  property  to  confiscation: — and  the 
most  eminent  persons  of  the  law  sitting  in  the  supreme  courts 
have  uniformly  sustained  such  judgments.  «...  [A  consid- 
erable number  of  English  decisions  are  here  reviewed.] 

I  omit  many  other  cases  of  the  last  and  the  present  war  merely 
on  this  ground  that  the  rule  is  so  firmly  established,  that  no  one 
case  exists  which  has  been  permitted  to  contravene  it, — For  I 
take  upon  me  to  aver,  that  all  cases  of  this  kind  which  have  come 
before  that  tribunal  have  received  an  uniform  determination. 
The  cases  which  I  have  produced  prove  that  the  rule  has  been 
rigidly  enforced: — where  acts  of  parliament  have  on  different 
occasions  been  made  to  relax  the  navigation-law  and  other  rev- 
enue acts ;  where  the  government  has  authorized,  under  the  sanc- 
tion of  an  act  of  parliament,  a  homeward  trade  from  the 
enemy's  possessions,  but  has  not  specifically  protected  an  out- 
\vard  trade  to  the  same,  though  intimately  connected  with  that 
homeward  trade,  and  almost  necessary  to  its  existence;  that  it 
has  been  enforced,  where  strong  claim  not  merely  of  convenience, 
but  almost  of  necessity,  excused  it  on  behalf  of  the  individual ; 
that  it  has  been  enforced  where  cargoes  have  been  laden  before 
the  war,  but  where  the  parties  have  not  used  all  possible  dili- 
gence to  countermand  the  voyage  after  the  first  notice  of  hostil- 
ities; and  that  it  has  been  enforced  not  only  against  the  subjects 
of  the  crown,  but  likewise  against  those  of  its  allies  in  the  war, 
upon  the  supposition  that  the  rule  was  founded  on  a  strong  and 
universal  principle,  which  allied  states  in  war  had  a  right  to 
notice  and  apply,  mutually,  to  each  other's  subjects.  Indeed  it 
is  the  less  necessary  to  produce  these  cases,  because  it  is  ex- 
pressly laid  down  by  Lord  Mansfield,  as  I  understand  him,  that 
such  is  the  maritime  law  of  England.  (Gist  v.  Mason,  1  T.  R., 
85.)  .  .  . 


KERSHAW  v.  KELSEY.  463 

A  reference  has  been  made  to  the  statutes. — It  is  not  argued 
that  the  statutes  will,  in  a  just  apprehension  of  them,  authorize 
such  a  trade,  but  that  they  might  have  led  to  an  innocent  mis- 
take on  the  subject.  ...  I  may  feel  greatly  for  the  individuals 
who,  I  have  reason  to  presume,  acted  ignorantly  under  advice 
that  they  thought  safe:  but  the  Court  has  no  power  to  depart 
from  the  law  which  has  been  laid  down,  and  I  am  under  the 
necessity  of  rejecting  the  claims. 


KERSHAW  v.  KELSEY. 

SUPREME  JUDICIAL  COUBT  OF  MASSACHUSETTS.     1869. 
100  Massachusetts,  561. 

[The  defendant,  a  citizen  of  Massachusetts,  being  in  Missis- 
sippi, took  in  February,  1864,  a  lease  of  the  plaintiff's  planta- 
tion, and  agreed  to  pay  a  rent  of  $10,000,  half  in  cash  and  half 
out  of  the  cotton  crop  to  be  grown  thereon.  Shortly  after,  he 
was  driven  out  by  Confederate  soldiers  and  returned  to  Boston. 
The  plaintiff  then  took  possession  of  the  plantation,  harvested 
the  crops,  and  delivered  them  to  the  defendant's  son  by  whom 
they  were  forwarded  to  the  defendant  in  Boston  and  sold.  The 
plaintiff  sues  for  the  rent  still  due  on  the  lease.  The  defendant 
contends  that  such  a  lease  constituted  trading  between  enemies 
contrary  to  the  principles  of  international  law  and  in  contra- 
vention of  the  terms  of  the  act  of  Congress  of  1861,  c.  3,  §  5,  and 
the  President's  proclamation  thereunder.  The  trial  judge  ruled 
that  the  contract  was  legal.] 

GRAY,  J.  .  .  .  This  case  presents  a  very  interesting  ques- 
tion, requiring  for  its  decision  a  consideration  of  fundamental 
principles  of  international  law.  It  is  universally  admitted  that 
the  law  of  nations  prohibits  all  commercial  intercourse  between 
belligerents,  without  a  license  from  the  sovereign.  Some  dicta 
of  eminent  judges  and  learned  commentators  would  extend  this 
prohibition  to  all  contracts  whatever.  In  a  matter  of  such  grave 
importance,  the  safest  way  of  arriving  at  a  right  result  will  be 
to  examine  with  care  the  principal  adjudications  upon  the  sub- 
ject. .  .  .  [Here  follows  an  elaborate  examination  of  the 
authorities.] 


464  THE  RULE  OF  NON-INTERCOURSE. 

The  result  is,  that  the  law  of  nations,  as  judicially  declared, 
prohibits  all  intercourse  between  citizens  of  the  two  belligerents 
which  is  inconsistent  with  the  state  of  war  between  their  coun- 
tries ;  and  that  this  includes  any  act  of  voluntary  submission  to 
the  enemy,  or  receiving  his  protection ;  as  well  as  any  act  or  con- 
tract which  tends  to  increase  his  resources;  and  every  kind  of 
trading  or  commercial  dealing  or  intercourse,  whether  by  trans- 
mission of  money  or  goods,  or  by  orders  for  the  delivery  of  either, 
between  the  two  countries,  directly  or  indirectly,  or  through  the 
intervention  of  third  persons  or  partnerships,  or  by  contracts 
in  any  form  looking  to  or  involving  such  transmissions,  or  by 
insurances  upon  trade  with  or  by  the  enemy.  Beyond  the  prin- 
ciple of  these  cases  the  prohibition  has  not  been  carried  by  judi- 
cial decision.  The  more  sweeping  statements  in  the  text  books 
are  taken  from  the  dicta  which  we  have  already  examined,  and 
in  none  of  them  is  any  other  example  given  than  those  just  men- 
tioned. At  this  age  of  the  world,  when  all  the  tendencies  of  the 
law  of  nations  are  to  exempt  individuals  and  private  contracts 
from  injury  or  restraint  in  consequence  of  war  between  their 
governments,  we  are  not  disposed  to  declare  such  contracts  un- 
lawful as  have  not  been  heretofore  adjudged  to  be  inconsistent 
with  a  state  of  war. 

The  trading  or  transmission  of  property  or  money  which  is 
prohibited  by  international  law  is  from  or  to  one  of  the  coun- 
tries at  war.  An  alien  enemy  residing  in  this  country  may  con- 
tract and  sue  like  a  citizen.  2  Kent.  Com.,  63.  When  a  creditor, 
although  a  subject  of  the  enemy,  remains  in  the  country  of  the 
debtor,  or  has  a  known  agent  there  authorized  to  receive  the 
amount  of  the  debt,  throughout  the  war,  payment  then  to  such 
creditor  or  his  agent  can  in  no  respect  be  construed  into  a  viola- 
tion of  the  duties  imposed  by  a  state  of  war  upon  the  debtor ;  it 
is  not  made  to  an  enemy,  in  contemplation  of  international  or 
municipal  law;  and  it  is  no  objection  that  the  agent  may  pos- 
sibly remit  the  money  to  his  principal  in  the  enemy's  country; 
if  he  should  do  so,  the  offence  would  be  imputable  to  him,  and 
not  to  the  person  paying  him  the  money.  Conn  v.  Penn.,  Pet.  C. 
C.  496.  Denniston  v.  Imbrie,  3  Wash.  C.  C.  396.  Ward  v. 
Smith,  7  Wallace,  447.  Buchanan  v.  Curry,  19  Johns.  137.  The 
same  reasons  cover  an  agreement  made  in  the  enemy's  territory 
to  pay  money  there  out  of  funds  accruing  there  and  not  agreed 
to  be  transmitted  from  within  our  own  territory;  for,  as  was 
said  by  the  Supreme  Court  of  New  York  in  the  case  last  cited, 


JANSON  v.  DRIEFONTEIN  CONSOL.  MINES.      465 

"the  rule  is  founded  in  public  policy,  which  forbids,  during 
war,  that  money  or  other  resources  shall  be  transferred  so  as  to 
aid  or  strengthen  our  enemies.  The  crime  consists  in  exporting 
the  money  or  property,  or  placing  it  in  the  power  of  the  enemy. ' ' 
The  lease  now  in  question  was  made  within  the  rebel  territory 
where  both  parties  were  at  the  time,  and  would  seem  to  have 
contemplated  the  continued  residence  of  the  lessee  upon  the 
demised  premises  throughout  the  term;  the  rent  was  in  part 
paid  on  the  spot,  and  the  residue,  now  sued  for,  was  to  be  paid 
out  of  the  produce  of  the  land ;  and  the  corn,  the  value  of  which 
is  sought  to  be  recovered  in  this  action,  was  delivered  and  used 
thereon.  No  agreement  appears  to  have  been  made  as  part  of 
or  contemporaneously  with  the  lease,  that  the  cotton  crop  should 
be  transported,  or  the  rent  sent  back,  across  the  line  between  the 
belligerents ;  and  no  contract  or  communication  appears  to  have 
been  made  across  that  line,  relating  to  the  lease,  the  delivery  of 
possession  of  the  premises  or  of  the  corn,  or  the  payment  of  the 
rent  of  the  one  or  the  value  of  the  other.  The  subsequent  for- 
warding of  the  cotton  by  the  defendant's  son  from  Mississippi 
to  Massachusetts  may  have  been  unlawful ;  but  that  cannot  affect 
the  validity  of  the  agreements  contained  in  the  lease.  Neither 
of  these  agreements  involved  or  contemplated  the  transmission 
of  money  or  property,  or  other  communication,  between  the 
enemy's  territory  and  our  own.  We  are  therefore  unanimously 
of  opinion  that  they  did  not  contravene  the  law  of  nations  or 
the  public  acts  of  the  government,  even  if  the  plantation  was 
within  the  enemy's  lines;  and  that  the  plaintiff,  upon  the  case 
reported,  is  entitled  to  recover  the  unpaid  rent,  and  the  value  of 
the  corn. 


JANSON  v.   DEIEFONTEIN   CONSOLIDATED   MINES, 

LIMITED. 

HOUSE  OF  LORDS  OF  GREAT  BRITAIN.    1902. 
Law  Reports  [1902]  A.  C.,  484. 

The  respondents,  a  company  registered  under  the  law  of  the 
South  African  Republic,  in  August,  1899,  insured,  with  the  ap- 
pellants, and  other  underwriters,  gold  against  (inter  alia)  "ar- 
rests, restraints,  and  detainments  of  all  kings,  princes,  and  peo- 


466  THE  RULE  OF  NON-INTERCOURSE. 

pie,"  during  its  transit  from  the  Gold  Mines  near  Johannesburg 
in  the  Transvaal  to  the  United  Kingdom.  On  October  2,  1899, 
the  gold  was  during  its  transit  seized  on  the  frontier  by  order 
of  the  Government  of  the  South  African  Republic.  On  October 
11  at  5  P.  M.  a  state  of  war  began  between  the  British  Govern- 
ment and  the  Government  of  the  Republic.  At  the  time  of  the 
seizure  war  was  admitted  to  be  imminent.  The  respondent  com- 
pany had  a  London  office,  but  its  head  office  was  at  Johannes- 
burg. Most  of  its  shareholders  were  resident  outside  of  the 
Republic  and  were  not  subjects  thereof.  The  respondent  com- 
pany having  brought  an  action  against  the  appellant  upon  the 
policy,  it  was  agreed  between  the  parties  that  the  action  should 
be  treated  as  if  brought  at  the  conclusion  of  the  war.  .  .  . 
The  action  was  tried  without  a  jury  before  Mathew  J.,  who  held 
that  the  appellant  was  liable,  [1900]  2  Q.  B.  339.  This  decision 
was  affirmed  by  the  Court  of  Appeal  (A.  L.  SMITH  M.  R.  and 
ROMER  L.  J.,  VAUGHAN  WILLIAMS  L.  J.,  dissenting),  [1901]  2 
K.  B.  419. 

EARL  OF  HALSBURY  L.  C.  My  Lords,  in  this  case  the  plain- 
tiffs, who  had  effected  a  policy  at  Lloyd 's  on  a  large  quantity  of 
gold  which  was  being  consigned  from  South  Africa  to  London, 
sue  on  this  policy,  dated  August  1,  1899,  in  respect  of  a  seizure 
by  the  Transvaal  Government  of  the  gold  in  question  on  October 
2  of  the  same  year.  There  is  no  doubt  that  the  loss  of  the  gold 
is  covered  by  the  express  words  of  the  policy  in  question,  and 
the  defence  to  the  action  rests  upon  the  proposition  that  the 
policy  was  an  unlawful  contract. 

It  might  be  the  subject  of  debate  whether  I  am  correct  in 
assuming  what  I  assume  for  the  purpose  of  my  judgment,  but 
for  the  sake  of  clearness  I  do  assume  that  the  plaintiff  company 
was  an  alien,  a  subject  of  the  Transvaal  Government.  I  also 
assume,  though  this  also  might  be  the  subject  of  debate,  that 
both  parties  to  the  contract  had  in  their  minds,  on  August  1, 
the  possibility  and  even  the  probability  of  war.  The  making  of 
the  policy  and  the  loss  under  it  both  accrued  before  the  breaking 
out  of  war,  which  it  is  agreed  between  the  parties  occurred  at  5 
o'clock  on  October  11. 

All  the  judges,  with  the  exception  of  Vaughan'  Williams  L.  J., 
have  held  that  the  plaintiffs  are  entitled  to  recover  upon  the 
policy;  and  if  I  rightly  understood  the  reasoning  of  the  learned 
Lord  Justice,  he  thinks  the  policy  was  in  its  inception  illegal, 
and  would  have  been  equally  illegal  even  if  no  war  had  inter- 


JANSON  v.  DRIEFONTEIN  CONSOL.  MINES.      467 

vened.  He  does  indeed  say  that  there  could  have  been  no  claim 
if  war  had  not  occurred ;  but  he  is  mistaken,  since  the  assumed 
imminence  of  the  war  and  the  seizure  by  the  Transvaal  Govern- 
ment might  have  occurred  even  if  war  had  finally  been  averted. 

The  difficulty  I  have  in  dealing  with  the  learned  judge 's  judg- 
ment is  that  I  do  not  trace  any  definite  proposition  as  to  what 
interest  of  the  State,  or  what  public  injury,  is  supposed  by  him 
to  be  involved;  but  at  all  events,  in  whatever  sense  the  learned 
judge  uses  this  phrase,  it  is  upon  this  general  ground  alone  that 
he  decides  against  the  plaintiffs. 

Now,  as  I  have  said,  I  understand  the  judgment  of  Vaughan 
Williams  L.  J.,  is  put  upon  the  sole  ground  that  this  policy  is 
against  public  policy.  He  puts  it  at  various  parts  of  his  judg- 
ment in  different  ways.  He  calls  it  a  contravention  of  public 
interest,  injurious  to  the  country,  inconsistent  with  public  duty, 
repugnant  to  the  interests  of  the  State,  and  no  doubt  there  are 
equivalent  phrases  to  be  found  in  many  judgments  where  their 
application  is  expounded;  but  the  learned  judge,  beyond  using 
these  phrases,  does  not  go  on  to  explain  in  what  sense  they  are 
used,  and  how  and  on  what  principles  of  law  the  policy  in  ques- 
tion was  unlawful.  ...  In  treating  of  various  branches  of 
the  law  learned  persons  have  analyzed  the  sources  of  the  law, 
and  have  sometimes  expressed  their  opinion  that  such  and  such 
a  provision  is  bad  because  it  is  contrary  to  public  policy;  but  I 
deny  that  any  Court  can  invent  a  new  head  of  public  policy. 

If  this  is  the  true  view,  it  is  not  difficult  to  solve  the  question 
whether  a  contract  of  insurance  made  before  a  war  and  sought 
to  be  enforced  in  respect  of  a  loss  incurred  before  the  war  is 
illegal,  either  in  its  inception  or  at  the  date  when  the  loss  was 
incurred.  However  stated  it  amounts  to  this — that  the  thing 
done  must  be  in  its  nature  an  assistance  to  the  public  enemy, 
and  if  there  be  no  public  enemy  there  can  be  no  aid  given  to 
him.  Nor  is  this  a  mere  question  of  words:  the  importance  of 
the  whole  region  of  public  policy  involved  makes  the  actual 
existence  of  war  at  the  time  of  the  creation  of  the  contract  or 
its  fulfilment  necessary.  I  will  assume  for  my  present  purpose 
(though  I  think  it  might  well  be  debated)  that  the  Transvaal 
Company  did,  to  quote  the  language  of  Vaughan  Williams  L.  J., 
"enter  into  this  contract  with  a  view  to  the  imminent  war  which 
might  or  might  not  break  out  with  Great  Britain." 

I  note  that  the  Lord  Justice  uses  the  phrase  "imminent,"  and 


468  THE  RULE  OF  NON-INTERCOURSE. 

one  is  disposed  to  ask,  Does  that  word  represent  a  principle 
capable  of  logical  application  to  the  propositions  ultimately 
arrived  at?  It  is  notorious  that  for  many  years  the  Transvaal 
Government  had  been  purchasing  and  storing  up  arms  and  am- 
munition to  an  enormous  extent  which  could  have  no  other 
object  than  a  war  with  this  country.  Were  all  the  contracts 
made  with  British  subjects  illegal?  or  with  foreigners,  breaches 
of  neutrality  on  the  part  of  countries  of  which  such  subjects 
were  supplying  arms  and  ammunition  to  the  expected  enemy  of 
the  British  Government?  No  such  principle  has  ever  been 
affirmed  by  any  lawyer  yet,  and  the  principles  upon  which  com- 
mercial intercourse  must  cease  between  nations  at  war  with  each 
other  can  only  be  where  the  heads  of  the  State  have  created  the 
state  of  war.  .  .  . 

In  order  to  produce  the  effect,  either  nationally  or  munici- 
pally, it  must  be  a  war  between  the  two  nations.  No  contract  or 
other  transaction  with  a  native  of  the  country  which  afterwards 
goes  to  war  is  affected  by  the  war.  The  remedy  is  indeed  sus- 
pended: an  alien  enemy  cannot  sue  in  the  Courts  of  either 
country  while  the  war  lasts;  but  the  rights  on  the  contract  are 
unaffected,  and  when  the  war  is  over  the  remedy  in  the  Courts 
of  either  is  restored. 

The  earlier  writers  on  international  law  used  to  contend  that 
some  public  declaration  of  war  was  essential,  and  Valin,  writing 
in  1770,  does  not  hesitate  to  describe  Admiral  Boscawen  's  opera- 
tions in  the  Mediterranean  in  1754  as  acts  of  piracy,  because  no 
actual  declaration  of  war  had  been  made ;  but  though  it  cannot 
be  said  that  that  view  is  now  the  existing  international  under- 
standing, it  is  essential  that  the  hostility  must  be  the  act  of  the 
nation  which  makes  the  war,  and  no  amount  of  "strained  rela- 
tions" can  affect  the  subjects  of  either  country  in  their  commer- 
cial or  other  transactions:  "Quand  le  conduct eur  de  I'etat,  le 
Souverain,  declare  la  guerre  a  un  autre  Souverain  on  entend 
que  la  nation  entiere  declare  la  guerre  a  une  autre  nation.  Car 
le  Souverain  represente  la  nation,  et  agit  au  nom  de  la  societe 
entiere,  et  les  nations  n'ont  a  faire,  les  unes  aux  autres,  qu'un 
corps  dans  leur  qualite  de  nations.  Ces  deux  nations  sont  done 
ennemis;  et  tous  les  sujets  le  I' une  sont  ennemis  de  tous  les 
sujets  de  I'autre.  L'usage  est  id  conforme  aux  principes'f 
(Vattel,  Droit  des  Gens,  liv.  3,  c.  5,  §  70). 

In  Muller  v.  Thompson,  (1811)  2  Camp.  610,  12  R.  R.  753, 
Lord  Ellenborough  held  that  the  voyage  to  Konigsberg  in  1810, 


JANSON  v.  DRIEFONTEIN  CONSOL.  MINES.      469 

though  the  relations  were  very  strained  between  this  country 
and  Prussia,  British  ships  being  actually  excluded  from  Prussia, 
and  it  being  objected  that  this  was  an  enemy's  port,  was  lawful 
inasmuch  as  no  war  was  declared  and  no  act  of  hostility  com- 
mitted— we  could  not  be  said  to  be  at  war,  which  alone  could 
render  the  voyage  unlawful. 

Trading  with  the  King 's  enemies  is,  of  course,  illegal.  Under- 
taking by  contract  to  indemnify  "the  King's  enemies  against  loss 
inflicted  by  the  King's  forces  is  also  illegal.  Such  things  are 
manifestly  unlawful;  but  the  words  "King's  enemies"  are  a 
necessary  feature  of  the  last  proposition. 

Substituting  the  word  "aliens,"  who  may  possibly  or  even 
probably  become  the  King's  enemies — and  in  this  case  the  loss 
and  the  policy  were  both  before  there  were  any  persons  who 
could  answer  to  that  description — it  would  be,  to  my  mind,  to 
introduce  a  new  principle  into  our  law  to  hold  that  the  proba- 
bility of  a  war  should  have  the  same  operation  as  war  itself.  It 
is  war  and  war  alone  that  makes  trading  illegal. 

I  think  no  more  striking  example  of  the  mischief  which  might 
result  from  so  loose  a  mode  of  applying  the  principle  of  public 
policy  in  Courts  of  justice  could  be  found  than  the  example  which 
elicited  Serjeant  Marshall's  protest,  which  I  have  quoted  above. 
Lord  Mansfield  had  expressed  the  opinion  that  it  was  good 
policy  to  permit  an  insurance  by  British  underwriters  of  ene- 
mies' goods,  because  we  might  obtain  more  in  premiums  than  we 
should  lose  by  capture ;  but  this,  in  my  view,  was  plainly  wrong, 
and  Valin,  followed  by  Pothier  and  Emergon,  denounced  such 
insurance,  and  said  that  by  the  English  practice  one  part  of  the 
nation  was  restoring  them  by  insurance  what  another  part  took 
from  them  by  arms. 

If  it  were  competent  to  a  Court  of  law  to  consider  the  question 
which  Vaughan  Williams  L.  J.  propounds  upon  principles  of 
public  policy,  apart  from  the  known  and  ascertained  rule  that 
intercourse  between  nations  at  war  is  forbidden  (which,  for  the 
reasons  I  have  given,  I  think  it  is  not),  I  should  answer  the 
question  in  a  different  way  from  that  at  which  he  arrives.  In- 
stead of  a  known  and  ascertained  rule  which  makes  it  clear 
whether  a  contract  is  unlawful  or  not,  each  of  the  contending 
parties  to  a  contract  must  look  all  round  the  political  horizon, 
and  form  a  judgment  whether  in  some  one  or  more  contingencies 
the  fulfilment  of  it  may  be  injurious  to  his  own  country  in  the 
event  of  war;  and  I  note  here  again  the  word  "imminent"  finds 


470  THE  RULE  OF  NON-INTERCOURSE. 

a  place  in  the  learned  judge's  question.  It  seems  to  me  that  the 
hindrance  done  to  the  free  commercial  intercourse  between 
nations  would  be  far  more  injurious  to  the  interests  of  both 
than  the  injury  the  learned  judge  suggests.  .  .  . 

For  these  reasons  I  move  your  Lordships  that  this  appeal 
be  dismissed  and  the  judgment  of  the  Court  of  Appeal  affirmed 
with  costs. 

LORD  DAVEY.  .  .  .  My  Lords,  there  are  three  rules  which 
are  established  in  our  common  law.  The  first  is  that  the  King's 
subjects  cannot  trade  with  an  alien  enemy,  i.  e.,  a  person  owing 
allegiance  to  a  Government  at  war  with  the  King,  without  the 
King's  licence.  Every  contract  made  in  violation  of  this  prin- 
ciple is  void,  and  goods  which  are  the  subject  of  such  a  contract 
are  liable  to  confiscation.  The  second  principle  is  a  corollary 
from  the  first,  but  is  also  rested  on  distinct  grounds  of  public 
policy.  It  is  that  no  action  can  be  maintained  against  an  insurer 
of  an  enemy's  goods  or  ships  against  capture  by  the  British 
Government.  One  of  the  most  effectual  instruments  of  war  is 
the  crippling  of  the  enemy's  commerce,  and  to  permit  such  an 
insurance  would  be  to  relieve  enemies  from  the  loss  they  incur 
by  the  action  of  British  arms,  and  would,  therefore,  be  detri- 
mental to  the  interests  of  the  insurer's  own  country.  The  prin- 
ciple equally  applies  where  the  insurance  is  made  previously  to 
the  commencement  of  hostilities,  and  was,  therefore,  legal  in  its 
inception,  and  whether  the  person  claiming  on  the  policy  be  a 
neutral  or  even  a  British  subject  if  the  insurance  be  effected  on 
behalf  of  an  alien  enemy.  The  third  rule  is  that,  if  a  loss  has 
taken  place  before  the  commencement  of  hostilities,  the  right  of 
action  on  a  policy  of  insurance  by  which  the  goods  lost  were 
insured  is  suspended  during  the  continuance  of  war  and  revives 
on  the  restoration  of  peace.  .  .  . 

Order    of    the    Court    of    Appeal    af- 
firmed and  appeal  dismissed  with  costs. 

[Opinions  were  also  delivered  by  LORD  MACNAGHTEN,  LORD 
BRAMPTON,  LORD  ROBERTSON,  and  LORD  LINDLEY.] 


SELIGMAN  v.  EAGLE  INSURANCE  CO.  471 

SELIGMAN  v.  EAGLE  INSURANCE  COMPANY. 

CHANCEBY  DIVISION  OF  THE  HIGH  COURT  OF  JUSTICE  OF  ENGLAND.    1917. 
Law  Reports  [1917]  1  Ch.  519. 

NEVILLE  J.  In  this  case  the  defendant  company  lent  a  sum 
of  money  to  a  person  who  is  now  an  alien  enemy.  The  loan  was 
made  some  time  before  the  war.  It  was  part  of  the  terms  of  the 
loan  that  the  borrower  had  to  insure  his  life  with  the  defendant 
company  in  a  certain  sum  on  two  policies  of  assurance.  The 
terms  of  the  policies  differ  in  only  one  respect  from  the  usual 
terms  to  be  found  in  ordinary  life  policies,  and  that  is  that  there 
is  a  covenant  in  them  on  the  part  of  the  assured,  the  borrower,  to 
pay  the  premiums  on  his  life  policy  from  year  to  year,  so  that  he 
could  not,  as  is  possible  in  the  ordinary  case,  simply  cease  to 
pay  his  premiums  and  let  the  policy  drop.  If  he  did  so,  he  was 
liable  to  be  sued  by  the  insurance  company  for  all  the  future 
payments  to  be  made  during  his  life;  but  I  do  not  think  that 
really  affects  the  question  I  have  to  determine.-  Part  of  the 
arrangement  for  the  loan  was  that  two  sureties  should  be  found, 
and  they  were  found.  So  that  the  insurance  company  not  only 
had  the  security  of  the  policies  on  the  borrower's  life,  but  they 
also  had  the  liability  of  two  sureties  for  the  amount  due.  The 
present  plaintiff  is  one  of  those  sureties.  After  the  war  broke 
out  the  plaintiff  tendered  the  premiums  which  fell  due  on  the 
policies,  which  were  only  accepted  by  the  insurance  company 
with  a  reservation  as  to  whether  the  contract,  at  all  events  be- 
tween them  and  the  alien  enemy,  was  not  at  an  end.  Subse- 
quently the  plaintiff  tendered  the  whole  of  the  amount  due  on 
the  loan  and  demanded  at  the  same  time  delivery  of  the  secur- 
ities which  the  insurance  company  held  for  the  debt,  asserting 
in  that  regard  the  ordinary  rights  of  a  surety  when  he  discharges 
the  debt  of  his  principal.  There  again  the  insurance  company 
refused  to  assign  the  policies  except  under  a  reservation,  that  is, 
a  reservation  of  the  question  of  whether  the  policies  were  good 
at  all  having  regard  to  the  outbreak  of  war  and  the  fact  that 
they  were  on  the  life  of  an  alien  enemy. 

It  seems  to  me  that  the  question  lies  within  an  exceedingly 
small  compass.  From  my  point  of  view  there  is  nothing  in  the 
nature  of  the  contract  to  put  an  end  to  it  upon  the  outbreak  of 
war.  It  seems  to  me  that  the  insurance  company  could  have 
sued  the  assured  under  his  contract  for  the  amount  of  the  pre- 


472  THE  RULE  OF  NON-INTERCOURSE. 

miums  under  the  covenant  contained  in  the  policy ;  but  that  of 
course  depends  upon  whether  if  they  had  sued  and.  recovered 
the  money  it  would  have  involved  any  act  on  their  part  which 
would  come  within  the  definition  of  "unlawful  intercourse  with 
the  enemy"  to  put  it  in  the  words  of  Warrington  L.  J.  in  the 
case  of  Halsey  v.  Lowenfeld,  [1916]  2  K.  B.  707,  716:  "If  an 
act  for  its  performance  necessitates  the  concurrence  of  the  other 
party,  the  promisee,  and  that  involves  unlawful  intercourse  with 
the  alien,  the  latter  would  be  discharged  from  his  obligation." 
Bringing  an  action  certainly  involves  the  concurrence  of  the 
promisee,  and  I  think  no  less  the  receipt  of  money  tendered  in- 
volves intercourse  with  the  other  party,  and  the  question  is 
whether  that  is  lawful  or  unlawful  intercourse.  I  have  no  doubt, 
and  the  Proclamation  itself  indicates  the  fact,  that  by  law  the 
receipt  of  money  from  an  enemy  in  itself  involves  no  unlawful 
intercourse.  I  take  it  that  if  every  alien  enemy  of  the  British 
Empire  at  the  present  time  were  to  make  an  offer  of  all  he  pos- 
sessed to  various  individuals  residing  within  the  limits  of  the 
British  Empire  there  would  be  nothing  illegal  in  British  subjects 
accepting  it  unless  there  was  reason  to  suspect  bribery.  It  is  not 
the  payment  and  the  concurrence  involved  in  accepting  the  pay- 
ment that  can  possibly -be  unlawful  intercourse. 

The  question  here  is  this:  A  contract  existed  at  the  date  of 
the  outbreak  of  war  that  if  the  assured  paid  his  premiums  punc- 
tually during  the  whole  of  his  life,  then  upon  his  death  the  com- 
pany would  pay  a  lump  sum  to  his  executors.  It  may  be  that  by 
refusing  to  accept  payment  of  the  premium  on  the  part  of  the 
policy-holder  he  would  have  been  unable  ever  to  recover  against 
the  company  the  lump  sum  contracted  for,  because  it  was  a  con- 
ditional contract,  the  contract  being  that  payment  should  be 
punctually  made.  Now  does  the  result  of  that  intercourse,  so  to 
speak,  involve  anything  illegal?  The  right  of  the  policy-holder 
is  clearly  suspended  during  the  war,  and  were  he  to  die  to- 
morrow his  executors  could  recover  nothing  from  the  company ; 
but  whenever  peace  is  restored  between  the  countries  normal  re- 
lations in  this  regard  will  be  resumed,  and,  although  the  right  of 
the  policy-holder  is  undoubtedly  suspended,  if  the  policy  itself 
is  not  made  void  either  at  the  time  when  war  was  declared  or  at 
the  time  when  the  current  year  of  the  policy  ran  out,  I  can  see 
nothing  illegal  in  the  acceptance  of  the  premiums  by  the  com- 
pany because  no  benefit  can  accrue  to  the  enemy  alien  at  all  as 
the  result  of  the  payment  of  his  premium;  but  what  will  result 


NOTE.  473 

is  that  perhaps  some  day  somebody  who  is  not  an  enemy  alien 
may  have  a  right  to  sue  the  company  for  the  amount  assured. 
It  seems  to  me  this  is  one  of  those  cases  where  the  right  is  sus- 
pended. 

I  also  think  it  cannot  possibly  be  said  here  that  mere  receipt 
of  the  premiums  by  the  company  is  unlawful  intercourse  with 
the  enemy,  and  that  really  is  the  whole  question.  The  payment 
itself  cannot  be  illegal.  Then,  having  regard  to  the  result  of  the 
payment,  can  it  be  illegal  ?  I  say  ' '  no, ' '  because  as  regards  the 
enemy  alien  himself  he  gains  nothing  by  the  transaction  while 
he  is  an  enemy  alien.  I  come,  therefore,  to  the  conclusion  that 
the  company  were  bound  to  hand  over  the  securities  without 
reservation  to  the  surety  upon  payment  of  the  debt,  and  that  the 
limitations  they  propose  to  insert  in  the  assignment  are  not  justi- 
fied. There  will  be  a  declaration  that  the  policies  did  not  become 
void  only  by  reason  of  Baron  von  Liebermann  becoming  an  alien 
enemy,  that  the  payment  and  receipt  of  premiums  are  not  unlaw- 
ful intercourse  with  an  alien  enemy,  and  that  on  payment  of  the 
amount  due  under  the  mortgage  the  plaintiff  will  be  entitled  to 
an  assignment  of  the  policies  without  reservation  in  accordance 
with  the  terms  of  the  proviso  for  redemption.  .  .  . 

NOTE. — It  is  held  in  all  Anglo-American  jurisdictions  that  the  ex- 
istence of  war  operates  to  interrupt  all  direct  relations  between  the 
subjects  of  the  two  belligerents  on  the  ground  that  intercourse  is 
inconsistent  with  a  state  of  war.  This  is  treated  as  a  rule  of  inter- 
national law,  but  it  is  impossible  to  reconcile  this  with  the  fact  that 
many  countries,  e.  g.,  Holland,  Germany,  Austria-Hungary  and  Italy, 
permit  commercial  relations  with  enemy  subjects  to  continue  until  ex- 
pressly forbidden  and  with  the  further  fact  that  both  Great  Britain 
and  the  United  States  mitigate  the  hardship  of  the  rule  of  non-inter- 
course by  issuing  licenses  to  trade,  and  such  licenses  are  not  in  con- 
flict with  any  rule  of  international  law.  The  rule  is  really  one  of 
domestic  policy  only.  Its  source  was  correctly  stated  by  Lord  Shaw 
of  Dunfermline  in  Daimler  Co.  Lt.  v.  Continental  Tyre  and  Rubber 
Co.  Ltd.,  L.  R.  [1916]  2  A.  C.  307,  328: 

War  is  not  war  between  Sovereigns  or  Governments  alone. 
It  puts  each  subject  of  the  one  belligerent  into  the  position  of 
being  the  legal  enemy  of  each  subject  of  the  other  belligerent; 
and  all  persons  bound  in  allegiance  and  loyalty  to  His  Majesty 
are  consequently  and  immediately,  by  the  force  of  the  common 
law,  forbidden  to  trade  with  the  enemy  Power  or  its  subjects. 

Several  reasons  have  been  assigned  for  the  enforcement  of  the  rule. 
In  general  it  is  based  upon  the  danger  to  the  state  of  allowing  trans- 
actions which  can  so  easily  be  made  the  medium  of  treasonable  com- 


474  THE  RULE  OF  NON-INTERCOURSE. 

munications.  But  in  Brandon  v.  Nesbitt  (1794),  6  T.  R.  23,  the  injury 
that  non-intercourse  might  inflict  upon  the  enemy  was  first  put  for- 
ward as  the  reason  for  the  practice,  while  in  Esposito  v.  Bowden 
(1857),  7  E.  &  B.  764,  and  in  Kershaw  v.  Kelsey  (1869),  100  Mass. 
561,  trade  with  the  enemy  was  condemned  because  of  its  tendency 
to  increase  the  enemy's  resources.  It  may  also  be  suggested  as  a 
practical  consideration  that  if  unrestricted  trade  with  the  enemy  were 
to  be  permitted,  it  would  require  a  degree  of  supervision  which  would 
impose  an  intolerable  burden  upon  the  government  concerned. 

There  is  a  growing  opinion  in  Anglo-American  jurisdictions  in  favor 
of  a  relaxation  of  the  rule.  So  long  as  a  belligerent  can  forbid  its 
subjects  to  trade  with  the  enemy  when  circumstances  appear  to  re- 
quire such  a  measure,  it  would  seem  that  its  interests  are  sufficiently 
safeguarded,  and  until  affirmative  action  to  the  contrary  is  taken  nor- 
mal relations  between  individuals  should  not  be  interrupted.  But 
the  older  rule  is  firmly  embodied  in  judicial  decisions,  and  has  been 
asserted  unequivocally  by  the  British  Prize  Court  in  the  Great  War. 
In  The  Panariellos  (1915),  1  Br.  &  Col.  P.  C.  195,  198,  Sir  Samuel  Evans 
said: 

When  war  breaks  out  between  States,  all  commercial  inter- 
course between  citizens  of  the  belligerents  ipso  facto  becomes 
illegal,  except  in  so  far  as  it  may  be  expressly  allowed  or 
licensed  by  the  head  of  the  State. 

An  attempt  was  made  to  introduce  a  more  liberal  rule  at  the  Second 
Hague  Conference  by  the  adoption  of  section  h  of  Article  XXIII  of 
Regulations  respecting  the  Laws  and  Customs  of  War  on  Land;  but 
the  language  of  the  section  is  ambiguous  and  the  subject  received  so 
little  discussion  that  the  Conference  can  hardly  have  realized  what 
far-reaching  changes  the  new  rule  involved. 

Among  the  many  cases  in  which  the  old  rule  has  been  applied  these 
may  be  noted:  Potts  v.  Bell  (1800),  8  T.  R.  548  (goods  purchased 
after  the  outbreak  of  war  in  an  enemy  country  but  not  necessarily 
from  an  enemy  subject  and  imported  in  a  neutral  ship) ;  The  Jonge 
Pieter  (1801),  4  C.  Robinson,  79  (trade  with  the  enemy  through  a 
neutral  port);  The  Odin  (1799),  1  C.  Robinson,  248  (fraudulent  trans- 
fer to  a  neutral  of  property  engaged  in  enemy  trade) ;  Willison  v. 
Patteson  (1817),  7  Taunton,  439  (the  rule  applied  to  all  contracts 
made  during  war  and  not  merely  to  those  of  a  commercial  nature  and 
even  though  suit  be  not  brought  until  the  close  of  the  war) ;  The 
Mashona  (South  Africa,  1900),  17  Buchanan,  135  (cargo  in  a  British 
vessel  consigned  by  British  merchants  to  neutral  merchants  domiciled 
in  enemy  territory);  The  Neptunus  (1807),  6  C.  Robinson,  403;  The 
Panariellos  (1915),  1  Br.  &  Col.  P.  C.  195;  The  Parchim  (1915)  1  Ib. 
579  (the  courts  of  any  of  a  group  of  allied  states  may  condemn  the 
goods  of  a  subject  of  any  such  states  who  violate  the  rule  of  non- 
intercourse) ;  The  Bernon  (1798),  1  C.  Robinson,  101;  The  Ocean 
(1804),  5  Ib.  90;  The  Juffrow  Catherina  (1804),  5  Ib.  141;  The  Man- 
ningtry  (1915),  1  Br.  &  Col.  P.  C.  497;  The  Liitzow  (Egypt,  1916), 
2  Ib.  122  (a  belligerent  or  neutral  subject  engaged  in  trade  in  an 


NOTE.  475 

enemy  country  must  withdraw  seasonably).  In  The  Rapid  (1814), 
8  Cranch,  155,  the  court  held  that  an  American  who  sent  an  agent  to 
Canada  to  bring  away  his  property  at  the  outbreak  of  war  with  Great 
Britain  was  engaged  in  intercourse  with  the  enemy  and  his  property 
was  condemned.  This  is  unduly  rigorous  and  the  case  would  probably 
not  now  be  followed.  A  subject  or  a  neutral  who  finds  himself  or  his 
property  in  enemy  territory  at  the  outbreak  of  war  should  be  given 
a  reasonable  opportunity  to  withdraw  without  in  the  meantime  ex- 
posing himself  to  the  penalty  of  trading  with  the  enemy,  and  it  was 
so  held  in  Nigel  Gold  Mining  Co.  Lt.  v.  Hoade,  L.  R.  [1901]  2  K.  B. 
849.  A  neutral  partner  is  not  obliged  to  withdraw  from  transactions 
with  the  enemy  which  were  in  progress  at  the  outbreak  of  war  pro- 
vided he  does  nothing  actively  to  facilitate  them.  His  obligations  in 
this  respect  are  less  stringent  than  those  of  subjects  of  a  belligerent 
state,  The  Anglo-Mexican  (1916),  L.  R.  [1916]  P.  112. 

The  rule  of  non-intercourse  is  directed  not  only  against  commercial 
relations  but  against  intercourse  of  any  kind.  In  The  Cosmopolite 
(1801),  4  C.  Robinson,  8,  10,  Lord  Stowell  said: 

It  is  perfectly  well  known,  that  by  war,  all  communication 
between  the  subjects  of  the  belligerent  countries  must  be  sus- 
pended, and  that  no  intercourse  can  legally  be  carried  on  be- 
tween the  subjects  of  the  hostile  states  but  by  the  special  li- 
cense of  their  respective  governments. 

In  The  Rapid  (1814),  8  Cranch,  155,  162  the  Supreme  Court  of  the 
United  States  said: 

If  by  trading,  in  prize  law,  was  meant  that  signification  of 
the  term  which  consists  in  negotiation  or  contract,  this  case 
would  certainly  not  come  under  the  penalties  of  the  rule.  But 
the  object,  policy  and  spirit  of  the  rule  is  to  cut  off  all  com- 
munication or  actual  locomotive  intercourse  between  individ- 
uals of  the  belligerent  states.  Negotiation  or  contract  has, 
therefore,  no  necessary  connexion  with  the  offence.  Inter- 
course inconsistent  with  actual  hostility,  is  the  offence  against 
which  the  operation  of  the  rule  is  directed. 

This  principle  was  applied  by  the  Court  of  Appeal  in  Robson  v. 
Premier  Oil  and  Pipe  Line  Co.  Lt.  (1915),  113  L.  T.  Rep.  523,  in 
which  it  was  held  that  enemy  shareholders  in  a  British  company 
may  not  during  war  vote  for  directors  of  the  company  nor  may  they 
delegate  their  voting  rights  to  a  proxy. 

For  many  years  the  common  law  courts  and  the  prize  courts  In 
Great  Britain  were  in  opposition  in  the  views  which  they  held  as  to 
whether  insurance  on  enemy  property  was  a  permissible  transaction. 
It  would  seem  that  contracts  of  insurance  with  enemy  subjects  or  for 
the  benefit  of  enemy  subjects  are  in  their  nature  as  objectionable  as 
any  other  form  of  contract,  but  Lord  Mansfield,  influenced  perhaps  by 
his  strong  bias  in  favor  of  the  mercantile  interests  of  England,  ar- 
gued that  the  premiums  paid  by  the  enemy  and  the  opportunity  which 
such  transactions  offered  to  obtain  information  from  the  enemy  more 


476  THE  RULE  OF  NON-INTERCOURSE. 

than  counterbalanced  any  advantage  to  the  enemy's  trade.  Hence  for 
about  fifty  years  an  owner  whose  property  had  been  condemned  in  a 
British  pize  court  could  go  into  a  British  common  law  court  and  re- 
cover its  value  from  a  British  insurance  company.  See  Henkle  v. 
Royal  Exchange  Assurance  Co.  (1749),  1  Vesey,  317;  Gist  v.  Mason 
(1786),  1  T.  R.  84.  This  continued  until  1794  when  Lord  Mansfield's 
decisions  were  overruled  and  the  common  law  courts  placed  them- 
selves in  harmony  with  the  prize  courts.  Brandon  v.  Nesbitt  (1794), 
1  T.  R.  23;  Bristow  v.  Towers  (1794)  6  T.  R.  35.  (The  argument 
of  counsel  for  plaintiff  in  the  latter  case,  pages  37-44,  includes  an  ac- 
count of  the  practice  of  the  British  Government  and  a  full  review  of 
the  cases.)  Six  years  later  the  question  again  came  up  in  the  lead- 
ing case  of  Potts  v.  Bell  (1800),  8  T.  R.  548,  when  the  decisions  made 
in  1794  were  affirmed,  and  since  that  time  the  common  law  courts 
have  consistently  followed  the  admiralty  rule. 

While  the  right  of  a  belligerent  state  to  interdict  all  intercourse 
with  enemy  subjects  is  clear,  it  may  find  it  advantageous  to  permit 
certain  forms  of  commerce.  This  is  done  by  means  of  licenses  to 
trade,  The  Hope  (1813),  1  Dodson,  226;  Kensington  v.  Inglis  (1807), 
8  East,  273;  Coppell  v.  Hall  (1869),  7  Wallace,  542.  Such  a  license, 
even  if  granted  to  an  alien  enemy,  implies  authority  to  insure, 
Usparicha  v.  Noble  (1811),  13  East,  332;  and  to  maintain  an  action 
in  the  courts,  United  States  v.  One  Hundred  Barrels  of  Cement  (1862), 
27  Fed.  Cases,  No.  15945.  Licenses  are  construed  liberally  in  order 
that  the  intent  of  the  grantor  may  be  made  effective,  The  Cosmopolite 
(1801),  4  C.  Robinson,  11;  The  Goede  Hoop  (1809),  Edwards,  327; 
Flindt  v.  Scott  (1814),  5  Taunton,  674,  but  conditions  attached  to  a 
license  must  be  strictly  complied  with,  Camelo  v.  Britten  (1824),  4 
B.  &  A.  184.  A  license  may  be  vitiated  either  by  fraud  in  obtaining 
it,  The  Clio  (1805),  6  C.  Robinson,  67,  or  by  misuse  of  it,  Vandyck  v. 
Whitmore  (1801),  1  East,  475. 

During  the  Great  War,  trade  with  the  enemy  was  regulated  by  de- 
tailed measures  of  legislation.  These  are  fully  reviewed  and  hundreds 
of  cases  which  have  arisen  under  them  are  cited  in  Huberich,  The 
Law  Relating  to  Trading  with  the  Enemy.  For  an  analysis  of  Ger- 
man measures  dealing  with  enemy  property,  see  Thiesing,  "Trading 
with  the  Enemy,"  Sen.  Doc.  107,  6oth  Congress,  1st  session:  Huberich, 
"German  Laws  Relating  to  Payments  to  Alien  Enemies,"  Columbia  Law 
Review,  XVII,  653. 

On  the  effect  of  war  on  intercourse  between  enemy  subjects  see 
Baty,  "Intercourse  with  Alien  Enemies,"  Law  Quarterly  Review, 
XXXI,  30;  Schuster,  Effect  of  War  and  Moratorium  on  Commercial 
Transactions;  Atherley-Jones,  Commerce  in  War;  Baty  and  Morgan, 
War:  Its  Conduct  and  Legal  Results,  294;  Bentwich,  The  Law  of- 
Private  Property  in  War;  Bordwell,  The  Law  of  War  between  Bel- 
ligerents; Bonfils  (Fauchille),  sec.  1060;  Cobbett,  Cases  and  Opin- 
ions, II,  62;  Page,  War  and  Alien  Enemies,  ch.  vi;  Garner,  I,  ch. 
viii;  Borchard,  sec.  354;  Hyde,  II,  202;  Moore,  Digest,  VII,  237. 


GKISWOLD  v.  WADDINGTON.  477 

SECTION  2.    THE  EFFECT  OF  WAS,  ON  CONTRACTS. 

GRISWOLD  v.  WADDINGTON. 
i 

COUBT  OF  ERRORS  OF  NEW  YORK.     1819. 
16  Johnson,  438. 

Error  to  the  Supreme  Court. 

[Prior  to  the  War  of  1812,  Henry  Waddington,  an  American 
citizen  resident  in  London,  and  Joshua  Waddington,  an  Amer- 
ican citizen  resident  in  New  York,  were  partners  in  a  trading 
house  in  London.  In  the  course  of  the  war  one  of  the  plaintiffs 
went  to  England  and  entered  into  commercial  relations  with 
Henry  Waddington.  After  the  war  the  plaintiffs  brought  suit 
for  the  balance  due  on  these  transactions,  and  sought  to  charge 
Joshua  Waddington  as  a  partner  of  Henry  Waddington.  The 
judgment  of  the  trial  court  in  favor  of  the  plaintiffs  was  re- 
versed by  the  Supreme  Court,  and  to  reverse  that  decision  this 
writ  of  error  was  brought.] 

THE  CHANCELLOR  [JAMES  KENT]  .... 

[The  first  part  of  the  opinion  is  an  exhaustive  review  of  all 
the  authorities  on  the  effect  of  war  on  commercial  relations  be- 
tween subjects  of  the  belligerent  states.] 

It  appears  to  me,  that  the  declaration  of  war  did,  of  itself, 
work  a  dissolution  of  all  commercial  partnerships  existing  at  the 
time  between  British  subjects  and  American  citizens.  By  deal- 
ing with  either  party,  no  third  person  could  acquire  a  legal  right 
against  the  other,  because  one  alien  enemy  cannot,  in  that  capac- 
ity, make  a  private  contract  binding  upon  the  other.  This  con- 
clusion would  seem  to  be  an  inevitable  result  from  the  new  re- 
lations created  by  the  war.  It  is  a  necessary  consequence  of  the 
other  proposition,  that  it  is  unlawful  to  have  communication 
or  trade  with  an  enemy.  To  suppose  a  commercial  partnership 
(such  as  this  was)  to  be  continued,  and  recognized  by  law  as 
subsisting,  when  the  same  law  had  severed  the  subjects  of  the 
two  countries,  and  declared  them  enemies  to  each  other,  is  to 
suppose  the  law  chargeable  with  inconsistency  and  absurdity. 
For  what  use  or  purpose  could  the  law  uphold  such  a  connection, 
when  all  further  intercourse,  communication,  negotiation,  or 
dealing  between  the  partners,  was  prohibited,  as  unlawful  ?  Why 


478  THE  RULE  OF  NON-INTERCOURSE. 

preserve  the  skeleton  of  the  firm,  when  the  sense  and  spirit  of  it 
has  fled,  and  when  the  execution  of  any  one  article  of  it  by 
either,  would  be  a  breach  of  his  allegiance  to  his  country?  In 
short,  it  must  be  obvious  to  every  one,  that  a  state  of  war  creates 
disabilities,  imposes  restraints,  and  exacts  duties  altogether  in- 
consistent with  the  continuance  of  that  relation.  Why  does  war 
dissolve  a  charter-party,  or  a  commercial  contract  for  a  particu- 
lar voyage?  Because,  says  Valin,  (torn.  1,  p.  626,)  the  war  im- 
poses an  insurmountable  obstacle  to  the  accomplishment  of  the 
contract ;  and  this  obstacle  arising  from  a  cause  beyond  the  con- 
trol of  the  party,  it  is  very  natural,  he  observes,  that  the  charter- 
party  should  be  dissolved,  as  of  course.  Why  should  the  contract 
of  partnership  continue  by  law  when  equally  invincible  obstacles 
are  created  by  law  to  defeat  it?  If  one  alien  enemy  can  go  and 
bind  his  hostile  partner,  by  contracts  in  time  of  war,  when  the 
other  can  have  no  agency,  consultation,  or  control  concerning 
them,  the  law  would  be  as  unjust  as  it  would  be  extravagant. 
The  good  sense  of  the  thing  as  applicable  to  this  subject,  is  the 
rule  prescribed  by  the  Roman  law,  that  a  copartnership  in  any 
business  ceased,  when  there  was  an  end  put  to  the  business  itself. 
Item  si  adicujus  rei  societas  sit,  et  finis  negotio  impositus  est, 
flinitur  societas.  (Inst.  3,  26,  6). 

The  doctrine,  -that  war  does  not  interfere  with  private  con- 
tracts, is  not  to  be  carried  to  an  extent  inconsistent  with  the 
rights  of  war.  Suppose  that  H.  &  J.  W.  had  entered  into  a  con- 
tract before  the  war,  which  was  to  continue  until  1814,  by  which 
one  of  them  was  to  ship,  half  yearly,  to  London,  consigned  to 
the  other,  a  cargo  of  provisions,  and  the  other,  in  return,  to  ship 
to  New  York  a  cargo  of  goods.  The  war  which  brpke  out  in  1812, 
would  surely  have  put  an  end  to  the  further  operation  of  this 
contract,  lawful  and  innocent  as  it  was  when  made.  No  person 
could  raise  a  doubt  on  this  point ;  and  what  sanctity  or  magic  is 
there  in  a  contract  of  copartnership,  that  it  must  not  yield  to  the 
same  power? 

If  we  examine,  more  particularly,  the  nature  and  objects  of 
commercial  partnerships,  it  would  seem  to  be  contrary  to  all  the 
rules  by  which  they  are  to  be  construed' and  governed,  that  they 
should  continue  to  exist,  after  the  parties  are  interdicted  by  the 
government,  from  any  communication  with  each  other,  and  are 
placed  in  a  state  of  absolute  hostility.  It  is  of  the  essence  of  the 
contract  that  each  party  should  contribute  something  valuable, 
as  money,  or  goods,  or  skill  and  labour,  on  joint  account,  and 


GRISWOLD  v.  WADDINGTON.  479 

for  the  common  benefit ;  and  that  the  object  of  the  partnership 
should  be  lawful  and  honest  business.  .  .  .  But  how  can  the 
partners  have  any  unity  of  interest,  or  any  joint  object  that  is 
lawful,  when  their  pursuits,  in  consequence  of  the  war,  and  in 
consequence  of  the  separate  allegiance  which  each  owes  to  his 
own  government,  must  be  mutually  hostile?  The  commercial 
business  of  each  country,  and  of  all  its  people,  is  an  object  of 
attack,  and  of  destruction  to  the  other.  One  party  may  be  en- 
gaged in  privateering,  or  in  supplying  the  fleets  and  armies  of 
his  country  with  provisions,  or  with  munitions  of  war;  and 
can  the  law  recognize  the  other  partner  as  having  a  joint  interest 
in  the  profits  of  such  business?  It  would  be  impossible  for  the 
one  partner  to  be  concerned  in  any  commercial  business,  which 
was  not  auxiliary  to  the  resources  and  efforts  of  his  country  in 
a  maritime  war.  And  shall  the'other  partner  be  lawfully  draw- 
ing a  revenue  from  such  employment  of  capital,  and  such  per- 
sonal services  directed  against  his  own  country?  We  cannot 
contemplate  such  a  confusion  of  obligation  between  the  law  of 
partnership  and  the  law  of  war,  or  such  a  conflict  between  his 
interest  as  a  partner,  and  his  duty  as  a  patriot,  without  a  mix- 
ture of  astonishment  and  dread.  Shall  it  be  said  that  the  part- 
nership must  be  deemed  to  be  abridged  during  war,  to  business 
that  is  altogether  innoxious  and  harmless?  But  I  would  ask, 
how  can  we  cut  down  a  partnership  in  that  manner  without 
destroying  it?  The  very  object  of  the  partnership,  in  this  case, 
was,  no  doubt,  commercial  business  between  England  and  the 
United  States,  and  which  the  hostile  state  of  the  two  countries 
interdicted ;  or  it  may  have  been  business  in  which  the  personal 
communication  and  advice  of  each  partner  was  deemed  essential, 
and  without  which  the  partnership  would  not  have  been  formed. 
It  is  one  of  the  principles  of  the  law  of  partnership,  that  it  is 
dissolved  by  the  death  of  any  one  of  its  members,  however  numer- 
ous the  association  may  be ;  and  the  reason  is  this :  the  personal 
qualities  of  each  partner  enter  into  the  consideration  of  the 
contract,  and  the  survivors  ought  not  to  be  held  bound  without 
a  new  assent,  when,  perhaps,  the  character  of  the  deceased 
partner  was  the  inducement  to  the  connection.  .  .  .  Shall  we 
say  that  the  partnership  continues  during  war,  in  a  quiescent 
state,  and  that  the  hostile  partners  do  not  share  in  each  other's 
profits,  made  in  carrying  on  the  hostile  commerce  of  each  coun- 
try? It  would  be  then  most  unjust  to  make  the  party  who  did 
not  share  in  profit  to  share  in  loss,  and  to  be  bound  by  the 


480  THE  RULE  OF  NON-INTERCOURSE. 

other's  contracts;  but  if  one  partner  does  not  share  in  profit, 
that  alone  destroys  a  partnership.  It  would  be  what  the  Roman 
lawyers  called  Societas  leonina,  in  allusion  to  the  fable  of  the 
lion,  who,  having  entered  into  a  partnership  with  the  other  ani- 
mals of  the  forest  in  hunting,  appropriated  to  himself  all  the 
prey.  (Dig.  17,  2,  29,  s.  2.  Pothier,  Trait,  du  Cont.  de  Soc.  n. 
12.)  ^ 

It  is  one  of  the  fundamental  principles  of  every  commercial 
partnership,  that  each  partner  has  the  power  to  buy  and  sell, 
and  pay  and  receive,  and  to  contract  and  bind  the  firm.  But 
then,  again,  as  a  necessary  check  to  this  power,  each  partner  can 
interfere  and  stop  any  contract  about  to  be  made  by  any  one  of 
the  rest.  This  is  an  elementary  rule,  derived  from  the  civil  law. 
In  re  pari  potiorem  causam  esse  prohibentis  constat.  .  .  .  But 
if  the  partnership  continues  in 'war  between  hostile  associates, 
this  salutary  power  is  withdrawn,  and  each  partner  is  left  de- 
fenceless. If  the  law  continues  the  connection,  after  it  has  de- 
stroyed the  check,  the  law  is  then  cruel  and  unjust. 

In  speaking  of  the  dissolution  of  partnerships,  the  French  and 
civil  law  writers  say,  that  partnerships  are  dissolved  by  a  change 
of  the  condition  of  one  of  the  parties  which  disables  him  to  per- 
form his  part  of  the  duty,  as  by  a  loss  of  liberty,  or  banishment, 
or  bankruptcy,  or  a  judicial  prohibition  to  execute  his  business, 
or  by  confiscation  of  his  goods.  .  .  .  The  English  law  of 
partnership  is  derived  from  the  same  source;  and  as  the  cases 
arise,  the  same  principles  are  applied.  The  principle  here  is, 
that  when  one  of  the  parties  becomes  disabled  to  act,  or  when  the 
business  of  the  association  becomes  impracticable,  the  law,  as  well 
as  common  reason,  adjudges  the  partnership  to  be  dissolved. 

Another  objection  was  raised,  from  the  want  of  notice  of  the 
dissolution  of  the  partnership.  The  answer  to  this  is  extremely 
easy,  and  perfectly  conclusive.  Notice  is  requisite  when  a  part- 
nership is  dissolved  by  the  act  of  the  parties,  but  it  is  not  neces- 
sary when  the  dissolution  takes  place,  by  the  act  of  the  law.  The 
declaration  of  war,  from  the  time  it  was  duly  made  known  to  the 
nations,  put  an  end  to  all  future  dealings  between  the  subjects 
and  citizens  of  the  two  countries,  and,  consequently,  to  the 
future  operation  of  the  copartnership  in  question.  The  declara- 
tion of  war  was,  of  itself,  the  most  authentic  and  monitory  no- 
tice. Any  other  notice  in  a  case  like  this,  between  two  public 
enemies,  who  had  each  his  domicil  in  his  own  country,  would 


STEVENSON  &  SONS  v.  AKTIENGESELLSCHAFT.    481 

have  been  useless.  All  mankind  were  bound  to  take  notice  of 
the  war,  and  of  its  consequence.  The  notice,  if  given,  could 
only  be  useless,  as  his  countrymen  could  not  hold  any  lawful 
intercourse  with  the  enemy.  It  could  not  be  given  as  a  joint  act, 
for  the  partners  cannot  lawfully  commune  together. 

But,  it  was  said,  that  the  peace  had  a  healing  influence,  and 
restored  the  parties  to  all  their  rights,  and  arrested  all  confisca- 
tions, and  forfeitures,  which  had  not  previously  and  duly  at- 
tached. I  do  not  know  that  I  differ  from  the  counsel  in  any  just 
application  of  this  doctrine.  As  far  as  the  war  suspended  the 
right  of  action  existing  in  the  adverse  party  prior  to  the  war, 
that  right  revived ;  but  if  the  contract  in  this  case  was  unlawful, 
peace  could  not  revive  it,  for  it  never  had  any  legal  existence. 
So  too,  the  copartnership  being  once  dissolved  by  the  war,  it  was 
extinguished  forever,  except  as  to  matters  existing  prior  to  the 
war.  .  .  . 

The  judgment  of  the  Supreme  Court  ought  to  be  affirmed. 

[Senator  Van  Vechten  delivered  a  concurring  opinion.  Sena- 
tor Livingston  and  Senator  Seymour  dissented.] 


HUGH  STEVENSON  &  SONS,  Limited  v.  AKTIENGESELL- 
SCHAFT FUR  CARTONNAGEN-INDUSTRIE. 

COURT  OF  APPEAL  OF  ENGLAND.     1916. 
Law  Reports  [1917]  1  K.  B.  842. 

Appeal  from  a  decision  of  Atkin  J.  reported  [1916]  1  K.  B. 
763.    .    .    . 

SWINFEN  EADY  L.  J.  .  .  .  The  defendants  appeal  from  a 
declaratory  judgment  of  Atkin  J.  in  an  action  commenced  under 
the  statute  5  Geo.  5,  c.  36,  intituled  "An  Act  to  facilitate  Legal 
Proceedings  against  Enemies  in  certain  cases."  The  writ  is  in- 
dorsed with  a  claim  for  a  declaration  that  the  effect  of  the  pres- 
ent war  is  to  terminate  a  contract  of  agency  and  dissolve  a  part- 
nership between  plaintiffs  and  defendants  entered  into  before 
the  outbreak  of  war,  and  also  for  a  declaration  that  the  defend- 
ants have  only  certain  rights  in  respect  thereof  mentioned  in  the 
indorsement.  The  defendants  contend  that  the  declaration  made 
by  the  judge  is  erroneous  in  law  and  in  effect  confers  rights  on 
33  the  plaintiffs  to  which  they  are  not  entitled. 


482  THE  RULE  OF  NON-INTERCOURSE. 

The  plaintiffs  are  an  English  limited  company,  and  the  de- 
fendants are  a  German  company,  carrying  on  business  at 
Dresden. 

By  an  agreement  in  writing,  dated  November  22,  1906,  and 
made  between  the  plaintiffs  and  defendants,  and  which  was  a 
subsisting  agreement  at  the  date  of  the  outbreak  of  war,  the 
plaintiffs  became  the  sole  agents  of  the  defendants  for  Great 
Britain  and  the  British  Colonies  for  the  sale  of  the  defendants' 
"metal  edging  and  studding"  machines  at  a  commission  of  15 
per  cent,  on  machines  sold  through  their  agency.  These  ma- 
chines are  made  in  Germany,  and  are  used  for  affixing  metal 
edges  and  studs  to  cardboard  boxes. 

By  the  same  agreement  the  parties  became  partners  in  the 
business  of  manufacturing  in  England  and  selling  here  and  in 
the  British  Colonies  the  metal  edges  and  studs.  This  busi- 
ness was  carried  on  at  the  "clamp  factory,"  a  part  of  the 
plaintiffs'  own  works,  for  which  an  agreed  amount  was 
payable  to  the  plaintiffs  and  the  business  was  carried  on 
in  the  name  of  the  plaintiffs  only,  and  all  goods  sold  were 
invoiced  to  customers  in  the  plaintiffs'  name  only,  the  name  of 
the  German  firm  not  appearing.  In  some  cases  the  plaintiffs 
themselves  bought  the  goods  so  manufactured  for  use  in  their 
own  separate  business  of  cardboard  box  making,  and  the  agree- 
ment fixed  the  price  at  which  they  were  entitled  so  to  do.  In 
other  cases  the  metal  edges  and  studs  were  sold  to  outside  cus- 
tomers, and  the  agreement  also  fixed  the  prices  for  these  sales. 

Certain  machinery  and  fittings  were  necessary  for  the  manu- 
facture of  these  clamps,  and  such  machinery  belonged  to  the 
partners  in  equal  shares,  and  for  any  additional  machines  re- 
quired each  partner  was  to  contribute  half  the  cost.  The  agree- 
ment further  provides  that  before  dividing  profits  interest  at  5 
per  cent,  is  to  be  allowed  on  each  partner's  capital. 

At  the  trial  the  judge  declared  that  the  agency  constituted  by 
the  agreement  was  terminated  and  the  partnership  dissolved  on 
August  4,  1914,  by  the  outbreak  of  war.  The  defendants  con- 
tended on  this  appeal  that  such  declaration  was  erroneous,  but 
in  my  judgment  it  was  clearly  right.  No  partnership  can  exist 
between  an  enemy  company  resident  in  Germany  and  an  English 
company  resident  here.  If  two  partners  are  resident  in  two  dif- 
ferent countries,  and  war  breaks  out  between  those  countries, 
the  partnership  is  determined  and  put  an  end  to  by  the  war: 
Evans  v.  Richardson  (1817),  3  Mer.  469;  Griswold  v.  Wadding- 


STEVENSON  &  SONS  v.  AKTIENGESELLSCHAFT.    483 

ton  (1819),  16  Johnson,  Sup.  Ct.  New  York,  438;  Lindley  on 
Partnership,  8th  ed.,  pp.  87,  88;  Partnership  Act,  1890  (53  & 
54  Viet.  c.  39),  s.  34.  Similarly  the  contract  of  agency  was 
terminated  by  the  war.  It  was  a  trading  contract,  and  war  dis- 
solves all  contracts  which  involve  trading  with  the  enemy: 
Esposito  v.  Bowden  (1857),  7  E.  &  B.  763,  784.  The  language 
of  the  declaration  as  to  the  rights  of  the  parties  consequent  on 
the  termination  of  the  agency  requires  certain  verbal  amend- 
ments, which  were  agreed  to  while  the  appeal  was  being  argued. 
As  amended  it  will  be  as  follows: — 2.  That  the  agency  con- 
stituted by  the  said  contract  was  terminated  on  the  4th  day  of 
August,  1914,  and  that  the  defendants  are  entitled  to  such  sum 
in  respect  thereof  as  was  due  to  them  from  the  plaintiffs  on 
that  date,  and  also  to  such  further  sum  in  respect  thereof  as 
has  since  become  due,  and  to  the  return  of  all  unsold  machines 
(if  any). 

The  defendants'  main  contention  on  this  appeal  is  that  the 
judgment  is  wrong  in  deciding  that  upon  the  dissolution  the 
English  partner  has  a  right  to  purchase  the  share  of  the  enemy 
partner  at  a  valuation,  and  that  the  enemy  partner  is  not  en- 
titled to  any  profits  or  interest  on  capital  since  August  4,  1914, 
notwithstanding  that  by  the  contract  of  partnership  he  is  al- 
lowed 5  per  cent,  interest  on  capital,  and  although  the  English 
partner  has  since  the  outbreak  of  war  carried  on  the  business  of 
the  partnership  and  used  the  partnership  capital  and  machinery, 
of  which  a  moiety  belongs  to  the  enemy  partner. 

In  the  absence  of  a  special  agreement  to  the  contrary,  the 
general  rule  is  that  on  the  dissolution  of  a  partnership  all  the 
property  belonging  to  the  partnership  shall  be  converted  into 
money  by  a  sale,  even  although  a  sale  may  not  be  necessary  for 
the  payment  of  debts :  Lindley  on  Partnership,  8th  ed.,  p.  623. 

In  the  present  case  there  is  no  contract  giving  the  plaintiffs 
the  right  to  purchase  their  late  partner's  share  at  a  valuation, 
or  to  take  it  themselves  upon- paying  its  value,  and  I  fail  to  see 
any  ground  upon  which  the  judgment  in  this  respect  can  be 
supported. 

I  am  opinion  that  the  effect  of  the  war  is  not  to  confer  upon 
the  English  partner  a  right  to  buy  his  late  partner's  share  at  a 
valuation  which  he  would  not  otherwise  have  had. 

Again,  by  s.  42  of  the  Partnership  Act  an  outgoing  partner  is 
entitled  to  a  share  of  the  profits  made  after  the  dissolution,  or 


484  THE  RULE  OF  NON-INTERCOURSE. 

to  interest  where  the  business  of  the  firm  is  carried  on  with  its 
capital  or  assets,  without  any  final  settlement  of  accounts  as 
between  the  firm  and  the  outgoing  partner.  No  exception  is 
made  by  the  statute  in  the  case  where  the  dissolution  is  the 
result  (s.  34)  of  a  partner  becoming  an  enemy.  The  fact  that 
the  enemy  partner  cannot  during  the  war  bring  any  action  to 
enforce  such  right  does  not  prevent  the  existence  of  the  right. 
Debts  owing  to  enemies  are  not  confiscated  on  the  occurrence  of 
war,  although  during  the  war  enemies  cannot  sue  for  payment. 
The  plaintiffs  in  carrying  on  the  business  in  England  after 
August  4,  1914,  were  not  under  the  control  of  the  enemy,  or 
communicating  or  holding  any  intercourse  with  him,  or  receiv- 
ing anything  from  him,  or  sending  anything  to  him,  or  making 
any  payment  to  him.  They  were  not  trading  with  him,  although 
some  benefit  might  accrue  to  the  enemy  from  what  they  were 
doing.  Every  transaction  whereby  a  profit  may  ultimately 
enure  to  an  enemy  is  not  necessarily  a  transaction  entered  into 
for  the  benefit  of  an  enemy.  If  it  were,  no  English  company 
with  a  single  enemy  shareholder  could  continue  to  trade.  Again, 
some  profits  may  have  arisen  from  the  business  after  the  com- 
mencement of  the  war  from  contracts  entered  into  or  obligations 
incurred  previously.  In  Daimler  Co.  v.  Continental  Tyre  and 
Rubber  Co.,  [1916]  2  A.  C.  307,  347,  the  following  passage  oc- 
curs in  the  speech  of  Lord  Parker  of  Waddington,  in  which 
Lords  Sumner,  Mersey,  and  Kinnear  concurred — that  is  to  say, 
the  majority  of  the  House  concurred  in  this  view.  Lord  Parker  L  1)1 
said:  "It  was  suggested  in  argument  that  acts  otherwise  law-  _- 
ful  might  be  rendered  unlawful  by  the  fact  that  they  might  tend 
to  the  enrichment  of  the  enemy  when  the  war  was  over.  I  en- 
tirely dissent  from  this  view.  I  see  no  reason  why  a  company 
should  not  trade  merely  because  enemy  shareholders  may  after 
the  war  become  entitled  to  their  proper  share  of  the  profits  of 
such  trading.  I  see  no  reason  why  the  trustee  of  an  English 
business  with  enemy  cestuis  que  trust  should  not  during  the  war 
continue  to  carry  on  the  business,  although  after  the  war  the 
profits  may  go  to  persons  who  are  now  enemies,  or  why  moneys 
belonging  to  an  enemy  but  in  the  hands  of  a  trustee  in  this  coun- 
try should  not  be  paid  into  Court  and  invested  in  Government 
stock  or  other  securities  for  the  benefit  of  the  persons  entitled 
after  the  war.  The  contention  appears  to  me  to  extend  the 
principle  on  which  trading  with  the  enemy  is  forbidden  far  be- 
yond what  reason  can  approve  or  the  law  can  warrant.  In  early 


STEVENSON  &  SONS  v.  AKTIENGESELLSCHAFT.    485 

days  the  King's  prerogative  probably  extended  to  seizing  enemy 
property  on  land  as  well  as  on  sea.  As  to  property  on  land, 
this  prerogative  has  long  fallen  into  disuse.  Subject  to  any  leg- 
islation to  the  contrary  or  anything  to  the  contrary  contained 
in  the  treaty  of  peace  when  peace  comes,  enemy  property  in  this 
country  will  be  restored  to  its  owners  after  the  war  just  as  prop- 
erty in  enemy  countries  belonging  to  His  Majesty's  subjects 
will  or  ought  to  be  restored  to  them  after  the  war.  In  the  mean- 
time it  would  be  lamentable  if  the  trade  of  this  country  were 
fettered,  businesses  shut  down,  or  money  allowed  to  remain  idle 
in  order  to  prevent  any  possible  benefit  accruing  thereby  to 
enemies  after  peace.  The  prohibition  against  doing  anything  for 
the  benefit  of  an  enemy  contemplates  his  benefit  during  the  war 
and  not  the  possible  advantage  he  may  gain  when  peace  comes." 
There  is,  however,  considerable  difficulty  in  the  way  of  an  out- 
going partner  seeking  to  establish  that  profits  have  been  made 
since  the  dissolution  which  are  attributable  to  the  use  of  his  share 
of  capital  or  assets.  It  is  almost  always  necessary  to  direct 
special  inquiries,  rendered  necessary  by  the  nature  of  the  busi- 
ness and  many  other  circumstances  which  have  to  be  taken  into 
consideration.  In  some  cases  the  subsequent  profits  made  may 
be  wholly  attributable  to  the  diligence,  business  aptitude,  credit, 
and  personal  qualities  of  the  remaining  partner.  Indeed,  Lord 
Lindley  states  in  the  8th  edition  of  his  book,  at  p.  677,  that  he  is 
not  aware  of  any  instance  in  which  a  judgment  for  a  share  of 
profits  after  dissolution  has  been  worked  out  and  has  resulted 
beneficially  to  the  person  in  whose  favour  it  was  made. 

Whatever  difficulties  there  may  be  in  the  way  of  the  defend- 
ants establishing  a  right  to  any  sum  as  profit  which  has  arisen 
since  August  4,  1914,  the  plaintiffs  are  not  entitled,  in  my  judg- 
ment, to  a  declaration  that  under  no  circumstances  can  the  de- 
fendants claim  any  profit  which  has  arisen  or  been  received  after 
August  4,  1914. 

Again,  there  is  the  alternative  of  interest,  from  which  he  is 
also  excluded  by  the  judgment.  Under  the  circumstances  before 
mentioned,  probably  a  claim  for  interest  would  be  the  real  and 
effective  claim  in  the  present  case,  and  not  profits.  Upon  what 
ground  can  it  be  maintained  that  the  plaintiffs,  having  used  the 
defendants'  share  of  the  partnership  assets  since  the  outbreak  of 
war  in  carrying  on  the  business,  are  under  no  obligation  to  pay 
interest  in  respect  thereof?  A  debt  which  by  law  carries  inter- 
est, and  which  is  owing  to  an  enemy  does  not  cease  to  carry 


486  THE  RULE  OF  NON-INTERCOURSE. 

interest  by  reason  of  the  war,  although  the  enemy  cannot  enforce 
payment  until  the  return  of  peace.  If  the  principal  of  the  debt 
is  not  confiscated,  why  should  the  interest  be  confiscated?  The 
learned  judge  below  said,  "Enemy  property  in  this  country  is 
not  to  be  confiscated";  yet  the  effect  of  the  judgment  is  to  con- 
fiscate the  interest,  as  if  the  defendant  had  not  been  an  enemy 
he  could  certainly  have  claimed  interest.  In  "Wolff  v.  Oxholm 
(1817),  6  M.  &  S.  92,  the  plaintiffs  recovered  against  the  defend- 
ant, who  had  formerly  been  an  enemy,  a  large  sum  for  interest 
which  accrued  during  the  war.  In  like  manner  interest  .must 
run  in  favour  of  an  enemy  during  the  war,  although  not  then 
actually  payable  to  him.  "By  Magna  Charta  merchant 
strangers  are,  upon  the  breaking  out  of  a  war,  to  be  attached  and 
kept  without  harm  to  body  or  goods,  until  it  shall  be  known  how 
the  English  merchants  are  treated  by  the  sovereign  of  their 
State,  and  if  the  latter  are  safe  there,  the  former  are  to  be  safe 
here.  So  that  foreign  merchants  could  suffer  nothing  in  Eng- 
land unless  by  way  of  retaliation  and  reprisal":  per  Lord 
Ellenborough  in  Wolff  v.  Oxholm.  Parliament  has  from  time  to 
time  passed  statutes  dealing  with  the  property  of  enemies  in  time 
of  war  from  the  same  point  of  view.  The  statute  34  Geo.  3, 
c.  79  (1794),  passed  during  the  war  with  France,  "was  not  an 
act  of  confiscation  to  the  benefit  of  the  State,  but  a  measure  of 
policy  not  less  generous  than  lawful,  by  which  at  the  same  time 
that  the  transmission  of  money  to  the  enemies  of  the  State  was 
prevented,  the  money  itself  was  called  in,  secured,  and  kept  for 
those  to  whom  it  was  due,  until  the  return  of  peace  should  enable 
them  to  receive  it":  per  Lord  Ellenborough  in  Wolff  v.  Oxholm. 
Again,  the  Trading  with  the  Enemy  Amendment  Act,  1914 
(5  Geo.  5,  c.  12),  proceeds  from  the  same  point  of  view  in  pro- 
viding for  the  appointment  of  a  person  to  act  as  "custodian  of 
enemy  property."  It  recites  that  it  is  expedient  to  make  fur- 
ther provision  for  preventing  the  payment  of  money  to  enemies, 
and  for  preserving,  with  a  view  to  arrangements  to  be  made  at 
the  conclusion  of  peace,  such  money  and  certain  other  property 
belonging  to  enemies.  It  will  be  for  Parliament  to  determine 
hereafter  what  is  to  be  the  ultimate  disposition  of  such  enemy 
money  and  property,  which  in  the  meantime  is  to  be  preserved. 
It  is  quite  inconsistent  with  these  provisions  to  hold  that  any 
rule  of  public  policy  requires  or  sanctions  the  confiscation  to  a 
British  partner  of  interest  which  would  otherwise  be  payable 
by  him  to  an  enemy  partner.  The  public  policy  of  this  country 


EETEL  BIEBER  &  CO.  v.  RIO  TINTO  CO.         487 

as  declared  by  Parliament  is  that  such  interest  should  be  "pre- 
served with  a  view  to  arrangements  to  be  made  at  the  conclusion 
of  peace."  The  Court  is  not  entitled  to  invent  a  new  head  of 
public  policy — Janson  v.  Brief ontein  Consolidated  Mines,  [1902] 
A.  C.  484,  491,  per  Lord  Halsbury — and  say  that  public  policy 
requires  that  any  interest  of  an  enemy  partner  shall  be  forfeited 
to  a  British  partner.  The  defendants'  rights  flow  from  the  con- 
tract of  partnership  which  was  legal  when  entered  into. 

Recent  legislation  has  prevented  the  occurrence  of  such  a  dead- 
lock as  was  suggested  in  argument.  By  s.  4  of  the  Trading  with 
the  Enemy  Amendment  Act,  1916  (5  &  6  Geo.  5,  c.  105),  the 
Board  of  Trade  may  vest  the  interest  of  the  defendants  in  the 
partnership  and  assets  in  the  custodian,  with  full  powers  of 
selling,  managing,  or  otherwise  of  dealing  with  it.  A  sale  by 
the  custodian  under  this  statute  of  the  enemy's  interest  in  the 
partnership  and  assets  and  in  any  profits  or  interest  would  con- 
fer a  good  title  upon  the  purchaser. 

In  my  judgment  the  declaration  which  the  plaintiffs  have  ob- 
tained is  too  favourable  to  them.  The  words  "the  value  of"  in 
the  third  declaration  contained  in  the  judgment  should  be 
struck  out.  Also  the  words  "as  of  the  date  August  4,  1914," 
and  also  the  words  "and  that  the  defendants  are  not  entitled  to 
any  of  the  profits  of  or  interest  in  the  capital  of  the  partnership 
since  August  4,  1914."  The  appellants  fail  in  their  contention 
that  war  did  not  dissolve  the  partnership  and  succeed  with  re- 
gard to  the  declaration.  Each  party  must  be  left  to  bear  his  own 
costs  of  the  appeal. 

Appeal  allowed  in  part. 

[BANKES  L.  J.  read  a  concurring  opinion.  A.  T.  LAWRENCE 
J.  dissented.] 


ERTEL    BIEBER   AND    COMPANY,    Appellants   v.    RIO 
TINTO  COMPANY,  Respondents. 

THE  HOUSE  OF  LORDS  OF  GREAT  BRITAIN.     1918. 
Law  Reports   [1918]  A.  C.  260. 

Appeals  from  three  orders  of  the  Court  of  Appeal  affirming 
judgments  of  Sankey  J.  [Only  so  much  as  relates  to  the  first 
case  is  here  given.] 


488  THE  RULE  OF  NON-INTERCOURSE. 

The  several  appellants  were  German  companies  carrying  on 
business  in  Germany. 

The  respondent  company  was  incorporated  in  England  and 
owned  large  mines  of  cupreous  sulphur  ore  in  Spain. 

These  appeals  related  to  contracts  entered  into  before  the  war 
for  the  supply  by  the  respondents  of  cupreous  sulphur  ore  to 
the  several  appellants,  and  the  question  for  determination  was 
whether  such  contracts  had  been  entirely  abrogated  and  avoided 
or  whether  they  were  merely  suspended  during  the  period  of  the 
war.  .  .  . 

In  the  first  case,  by  an  agreement  of  January  27,  1910,  the 
respondents  agreed  to  sell  to  the  appellants  1,280,000  tons,  15 
per  cent,  more  or  less  in  buyers'  option,  of  cupreous  sulphur  ore 
to  be  shipped  from  Huelva  in  Spain  between  February  1,  1911, 
and  November  30,  1914,  and  to  be  delivered  ex  ship  in  Rot- 
terdam, Hamburg,  Stettin,  and/or  other  European  Continental 
ports,  except  ports  in  Great  Britain,  France,  Belgium,  and 
Spain  and  Portugal ;  and  by  subsequent  agreements  the  quantity 
of  ore  was  increased  by  105,000  and  50,000  tons.  At  the  out- 
break of  the  war  on  August  4,  1914,  a  substantial  part  of  this-- 
ore  still  remained  to  be  delivered. 

By  a  further  agreement  of  October  9,  1913,  the  respondents 
agreed  to  sefl  to  the  appellants  2,200,000  tons,  15  per  cent,  more 
or  less  in  buyers'  option,  of  cupreous  sulphur  ore  to  be  shipped 
from  Huelva  between  February  1,  1915,  and  November  30,  1919, 
on  the  same  terms  as  before. 

Each  of  these  contracts  contained  a  suspensory  clause,  which 
provided  that  if  owing  to  strikes,  war,  or  any  other  cause  over 
which  the  sellers  had  no  control,  they  should  be  prevented  from 
shipping  or  delivering  the  ore,  the  obligation  to  ship  and/or  de- 
liver should  be  suspended  during  the  continuance  of  the  impedi- 
ment and  for  a  reasonable  time  afterwards,  and  the  clause  con- 
tained a  corresponding  provision  in  favour  of  the  buyers 
suspending  their  obligation  to  receive  in  the  event  of  their  being 
prevented  from  doing  so  by  the  like  causes.  .  .  . 

On  August  4,  1916,  the  respondents,  pursuant  to  orders  of 
Bray  J.,  commenced  actions  under  the  Legal  Proceedings 
against  Enemies  Act,  1915,  against  the  several  appellants  claim- 
ing declarations  that  the  contracts  were  abrogated  and  avoided 
by  the  existence  of  a  state  of  war  between  Great  Britain  and 
Germany  on  August  4,  1914,  and  that  the  respondents  were 
thereby  released  from  any  obligation  to  perform  them,  without 


EETEL  BIEBEE  &  CO.  v.  RIO  TINTO  CO.         489 

prejudice,  however,  to  liabilities  then  already  incurred. 

Sankey  J.  held,  on  the  authority  of  Zinc  Corporation  v, 
Hirsch,  [1916]  1  K.  B.  541,  that  the  contracts  had  become  il- 
legal and  were  dissolved  and  made  the  declarations  asked  for, 
and  his  decision  was  affirmed  by  the  Court  of  Appeal  (Pickford 
and  Scrutton  L.  JJ.  and  Neville  J.)  ... 

LORD  SUMNER.  My  Lords,  there  are  two  contracts,  to  which 
this  appeal  refers.  Under  the  first,  as  enlarged  by  two  indorse- 
ments, the  last  shipment  was  to  be  made  by  November  30,  1914. 
This  contract  was  in  course  of  execution  when  the  present  war 
began,  and  a  substantial  quantity  still  remains  undelivered. 
Under  the  second  deliveries  were  not  to  begin  till  February  1, 
1915,  and  nothing  has  been  done  under  it.  Clause  21  provided 
that  "all  former  contracts  are  to  be  considered  as  expired  on 
March  1,  1915."  Accordingly  I  do  not  propose  to  distinguish 
the  first  contract  from  what  I  have  to  say  about  the  second.  The 
appellants  have  raised  two  contentions,  both  of  which  are,  I 
think,  of  the  essence  of  their  argument:  (1.)  that  the  effect  of 
the  outbreak  of  war  depends  on  the  particular  terms  of  the  con- 
tract in  question,  and  not  upon  the  general  character  of  the  class 
of  contracts  to  which  it  belongs;  and  (2.)  that  the  outbreak  of 
war  discharges  further  performance  only  where  those  terms  nec- 
essarily involve  commercial  intercourse  with  the  enemy.  If  the 
first  proposition  is  not  true,  the  particular  terms  of  the  contract 
are  immaterial.  If  the  second  should  be  read  "involves  natural- 
ly or  ordinarily"  instead  of  "necessarily,"  then  on  the  mere 
construction  of  this  contract  I  think  the  argument  fails.  Even 
if  clause  15  has  full  effect  as  a  suspension,  still  it  only  suspends 
the  sellers'  obligation  to  ship  and  deliver,  and  does  not  cancel  i':. 
Clause  12  is  left  unaffected  throughout,  and  under  it  declara- 
tions in  writing  would  naturally  be  given  by  the  buyers  as  soon 
as  the  end  of  the  suspension  drew  near,  even  if  there  were  not 
an  annual  obligation  on  them  to  do  so,  which  I  believe  to  be  the 
better  construction. 

The  rule  of  law  which  forbids  a  British  subject  to  trade  with 
the  King's  enemies  is  very  ancient.  Its  effect  upon  trading  con- 
tracts which,  like  the  present,  are  executory  on  both  sides  was 
already  well  settled  by  the  middle  of  the  last  century.  Esposito 
v.  Bowden,  7  E.  &  B.  763;  27  L.  J.  (Q.  B.)  17,  19,  finally  an- 
swered the  last  of  the  questions  which  had  been  raised  down  to 
that  time.  The  Court  of  Queen's  Bench  held  that  the  charter 
was  only  dissolved  on  the  outbreak  of  war  if  it  could  not  pos- 


490  THE  EULE  OF  NON-INTERCOURSE. 

sibly  be  performed  without  trading  with  the  enemy,  and  in  sup- 
porting this  decision  in  the  Court  of  Exchequer  Chamber  Mr. 
Manisty  argued  that  the  mere  declaration  of  war  did  not  rescind 
the  executory  contract  in  question;  "it  only  suspends  it,  and 
renders  it  illegal  where  it  cannot  be  performed  in  any  legal  man- 
ner."  The  Court  of  Exchequer  Chamber  first  of  all  made  it 
plain  that  the  question  was  a  general  one,  not  dependent  on  the 
mere  possibilities  of  the  particular  case,  and  that  the  occlusion 
of  Odessa  to  Englishmen  generally,  by  force  of  law,  for  an  in- 
definite and  presumably  protracted  time,  could  not  be  done  away 
with  by  suggesting  some  possibility  of  a  British  ship  loading 
cargo  in  that  enemy  port  while  somehow  or  other  avoiding  all 
contact  with  any  enemy.  Secondly,  the  Court  decided  in  ex- 
press terms  that  illegality  does  not  suspend ;  it  dissolves.  What 
the  law  forbids  is  impossible  of  performance  to  those  who  owe 
obedience  to  that  law,  and  this  higher  public  obligation  dis- 
charges any  private  obligation  to  the  contrary. 

Before  1914  I  do  not  think  that  the  theory  upon  which  this 
dissolution  is  held  to  occur  had  been  the  subject  of  actual  deci- 
sion. The  common  law  rule  is  much  older  than  the  development 
of  over-seas  commerce,  and  during  last  century  the  practical 
question  raised  was  "how  does  the  rule  affect  commercial  con- 
tracts, ' '  and  not  ' '  how  is  that  effect  to  be  stated  and  justified  in 
terms  of  general  jurisprudence."  It  occurred,  however,  within 
recent  years  to  some  ingenious  mind,  obviously  with  the  desire 
to  prefer  private  commerce  to  public  principle,  that  a  clause  of 
suspension  might  secure  to  particular  contracts  that  continued 
existence  during  war  which  the  Exchequer  Chamber  had  denied 
generally.  To  negotiate  with  an  enemy  towards  the  end  of  a 
war  for  the  conclusion  of  a  contract  to  sell  and  deliver  goods  as 
soon  as  peace  should  be  signed  would  be  a  crime,  but  to  stand 
bound  to  do  so  by  a  contractual  tie  throughout  the  war  might 
possibly  be  lawful,  if  only  the  contract  was'  concluded  before  the 
war  with  a  provident  eye  to  the  possibility  of  its  occurrence. 
Hence  the  disputes  of  which  the  present  appeal  is  a  type.  Does 
a  suspensory  clause  oust  the  application  of  the  general  rule? 

My  Lords,  public  policy,  though  a  clue  to  the  principle  in- 
volved, is  not  in  itself  the  key  to  the  difficulty.  The  rule  as  to 
the  dissolution  of  trading  contracts  on  the  outbreak  of  war, 
when  they  are  executory  on  both  sides,  is  said  to  exist  for  the 
purpose  of  assisting  to  cripple  the  enemy's  commerce  and  of 
closing  an  avenue  to  illicit  and  traitorous  correspondence.  These 


EETEL  BIEBER  &  CO.  v.  RIO  TINTO  CO.         491 

are,  however,  the  practical  advantages  of  the  rule,  not  its  basis 
in  theory.  Courts  of  law  are  not  at  liberty  to  apply  the  rule 
and  dissolve  a  contract  merely  because  they  think  its  continu- 
ance disadvantageous  to  this  country's  belligerent  policy.  I 
think  that  public  policy  is  a  separate  ground  for  deciding  this 
particular  case,  but  so  far  as  trading  with  the  enemy  goes  I  wish 
to  keep  within  what  I  conceive  to  be  implicit  in  the  old  decisions 
upon  the  question. 

My  Lords,  if  upon  public  grounds  on  the  outbreak  of  war  the 
law  interferes  with  private  executory  contracts  by  dissolving 
them,  how  can  it  be  open  to  a  subject  for  his  private  advantage 
to  withdraw  his  contract  from  the  operation  of  the  law  and  to 
claim  to  do  what  the  law  rejects,  merely  to  suspend  where  the 
law  dissolves?  The  prohibition,  which  arises  at  common  law  on 
the  outbreak  of  war,  has  for  this  purpose  the  effect  of  a  statute. 
The  choice  between  suspending  and  discharging  the  contract  on 
the  outbreak  of  war  was  quite  deliberately  made,  and  if  occa- 
sionally the  contract  is  said  to  be  only  suspended,  or  a  Court 
refuses  to  dispose  of  a  case  on  the  ground  of  dissolution  alone, 
this  only  brings  into  relief  the  fact  that  by  an  overwhelming 
preponderance  of  authority  such  trading  contracts  have  been 
held  to  be  dissolved  on  the  outbreak  of  war.  An  appearance  of 
authority  to  the  contrary  is  sometimes  found  to  be  in  truth  a 
misreading  of  the  language  of  a  decision.  Thus  Lord  Hals- 
bury  's  use  of  the  word  ' '  affected ' '  in  Janson  v.  Drief ontein  Con- 
solidated Mines,  [1902]  A.  C.  484,  493,  is  due  to  the^act  that, 
by  consent,  the  ease  had  been  tried  as  if  the  then  war  had  ter- 
minated. The  question  was  one  of  a  cause  of  action,  which  had 
accrued  one  day  before  the  outbreak  of  war  and  thereupon  had 
been  suspended  as  to  the  remedy  only.  Of  course,  if  the  war 
was  treated  as  over,  neither  contract  nor  remedy  was  ' '  affected. ' ' 
The  policy  was  not  an  executory  contract  after  war  broke  out 
so  far  as  concerned  the  gold  seized  at  Vereeniging  at  all.  There 
can  be  no  doubt  that  the  matter  must  have  been  considered.  To 
many  people  suspension  seems  to  have  much  to  recommend  it. 
Freedom  of  contract  is  challenged  less ;  the  sacrosanctity  of  com- 
merce is  respected  more.  The  Courts  could  not  have  adopted 
the  rule  of  dissolution  unless  they  had  reasoned  that  suspension 
would  be  inconsistent  with  this  principle  of  the  law  of  contract. 
I  will  quote  the  language  of  Willes  J.  in  Esposito's  Case,  7  E. 
&  B.  763,  792:  "In  all  ordinary  cases,  the  more  convenient 
course  for  both  parties  seems  to  be  that  both  should  be  at  once 


192  THE  RULE  OF  NON-INTERCOUESE. 

absolved,  so  that  each,  on  becoming  aware  of  the  fact  of  a  war, 
the  end  of  which  cannot  be  foreseen,  making  the  voyage  or  the 
shipment  presumably  illegal  for  an  indefinite  period,  may  at 
once  be  at  liberty  to  engage  in  another  adventure  without  wait- 
ing for  the  bare  possibility  of  the  war  coming  to  an  end  in  suffi- 
cient time  to  allow  of  the  contract  being  fulfilled,  or  some  other 
opportunity  of  lawfully  performing  the  contract  perchance  aris- 
ing. The  law  upon  this  subject  was  doubtless  made,  according 
to  the  well-known  rule,  to  meet  cases  of  ordinary  occurrence." 
To  his  mind  I  think  it  is  clear  that  the  rule  was  one  made  to 
provide  certainty  at  the  outbreak  of  war,  where  in  itself  every- 
thing is  uncertain ;  that  it  was  one  made  to  apply  generally,  al- 
though taking  its  form  from  the  needs  of  ordinary  cases;  and 
that,  for  the  purpose  of  applying  it,  the  case  must  be  looked  at 
as  things  stood  when  war  broke  out,  and  not  as  they  were  ascer- 
tained to  be  or  as  they  ultimately  happened  during  the  interval 
before  the  trial  of  the  action. 

In  the  abstract,  discharge  of  a  contract  by  reason  of  the  out- 
break of  war  between  the  countries  to  which  the  parties  respect- 
ively belong  should  be  effected  simply  by  operation  of  law  inde- 
pendently of  their  arrangements.  The  rule  sets  the  public  wel- 
fare above  private  bargain.  It  does  so  for  the  safety  of  the 
State  in  the  twofold  aspect  of  enhancing  the  nation's  resources 
and  crippling  those  of  the  enemy..  To  hold  that  the  parties  may 
be  allowed  to  make  their  own  arrangements  for  attaining  these 
ends  and  to  set  their  private  judgment,  not  untinged  by  consid- 
erations of  their  future  interest,  'above  the  prescriptions  of  the 
public  law  would  be  anomalous.  To  say  that  for  the  purpose  of 
preventing  such  intercourse  the  law  generally  determines  stipu- 
lations which  involve  commercial  intercourse  between  enemies, 
but  when  the  parties  have  agreed  not  to  hold  any  such  inter- 
course is  content  to  leave  it  to  them,  would  indeed  be  rash.  True, 
there  is  the  criminal  law  against  holding  commercial  intercourse 
with  the  enemy,  but  the  offence  is  one  not  always  easy  to  detect. 
In  a  matter  of  national  safety  the  State  cannot  surely  rely  on 
the  bare  integrity  and  good  faith  of  persons  whose  commercial 
interest  may  so  strongly  conflict  with  their  public  duty. 

Though  the  contracts  now  in  question  are  elaborate  in  form 
and  grandiose  in  scale,  they  are  not  in  their  nature  distinguish- 
able from  such  a  contract  as  that  in  Esposito  v.  Bowden,  7  E.  & 
B.  763;  27  L.  J.  (Q.  B.)  17.  The  latter  was  a  charter;  the  for- 
mer are  contracts  to  sell  goods  and  deliver  them  overseas  under 


ERTEL  BIEBER  &  CO.  v.  RIO  TINTO  CO.         493 

many  charters.  "It  is  nowise  important, ' '  says  Story  J.  in  The 
Rapid  (1812),  1  Gall.  295,  309,  "whether  the  property  engaged 
in  the  inimical  communication  be  bought  or  sold,  or  merely 
transported  and  shipped."  Nor  is  it  material  that  these  con- 
tracts provide  for  a  series  of  shipments  and  for  deliveries  by  in- 
stalments. Chancellor  Kent  puts  the  very  case  of  a  contract  to 
ship  in  instalments  in  Griswold  v.  Waddington  (1819),  16  John- 
son, Sup.  Ct.  New  York,  438,  489,  and  dismisses  it  as  indistin- 
guishable from  a  contract  for  a  single  shipment.  It  is  not  for 
this  purpose  that  each  instalment  can  be  treated  as  if  it  were 
the  subject  of  a  separate  contract,  or  that  instalments,  which  in 
point  of  date  might  fall  to  be  delivered  after  the  conclusion  of 
peace,  can  be  severed  from  the  rest.  The  whole  contract  so  far 
as  it  is  mutually  executory  is  dissolved.  Again,  the  suspension 
of  the  right  of  suit  in  the  case  of  enemy  nationals,  for  causes 
of  action  already  accrued,  until  the  conclusion  of  peace  is  not 
an  argument  in  favour  of  substituting  suspension  by  agreement 
for  discharge  by  operation  of  law.  Whether  it  sounds  in  debt 
or  in  damages  such  a  cause  of  action  implies  a  present  obligation 
to  pay  simultaneous  with  its  coming  into  existence.  Suspension 
of  the  remedy  implies  no  continuance  of  the  contract  during  the 
war,  but  only  a  recognition  of  its  existence  before  the  war  as.  the 
basis  or  origin  of  a  right,  which,  when  it  has  accrued,  is  a  chose 
in  action,  a  form  of  property. 

My  Lords,  in  my  opinion  discharge  by  operation  of  law  upon 
the  outbreak  of  war  operates  upon  trading  contracts  as  a  class 
by  reason  of  their  common  characteristic  of  international  inter- 
course, and  is  not  prevented  by  special  stipulations  between  the 
parties.  It  is  not  necessary  for  present  purposes  to  define  the 
term  "trading"  or  the  word  "enemy."  The  class  affected  is  not 
such  contracts  as  contemplate  a  continuance  of  trading  during 
war,  but  trading  contracts  as  such,  which  are  in  being  as  mu- 
tually executory  contracts  at  the  outbreak  of  war,  and  would  in 
ordinary  course  and  circumstances  import  commercial  inter- 
course. "War,"  says  Lord  Lindley  in  Janson's  Case,  [1902] 
A.  C.  509,  ".  .  .  prohibits  all  trading  with  the  enemy  except 
with  the  Royal  license,  and  dissolves  all  contracts  which  involve 
such  trading."  As  the  present  case  is  one  of  such  executory 
trading,  I  think  the  rule  that  such  contracts  are  discharged 
upon  the  outbreak  of  war  must  apply. 

There  is  another  and  independent  ground  on  which  this  ap- 
peal may  be  disposed  of.  "We  are  all  of  opinion,"  says  Lord 


494  THE  RULE  OP  NON-INTEECOURSE. 

Alvanley  C.  J.  in  Furtado  v.  Rogers,  3  Bos.  &  P.  191,  198,  speak- 
ing of  a  commercial  contract  operating  after  the  outbreak  of 
war  though  made  before  it,  "that  on  the  principles  of  the 
English  law  it  is  not  competent  to  any  subject  to  enter  into  a 
contract  to  do  any  thing  which  may  be  detrimental  to  the  in- 
terests of  his  own  country."  If  the  principle  of  this  decision 
be  applied  to  the  construction  of  these  contracts,  the  suspensory 
clauses  must  be  read  as  if  they  contained  the  words  "an  Anglo- 
German  war  always  excepted";  in  that  case,  under  Esposito  v. 
Bowden,  7  E.  &  B.  763;  27  L.  J.  (Q.  B.)  17,  the  contracts  be- 
came discharged.  If  on  the  other  hand  the  above  passage  be 
applied  and  the  suspensory  clauses  be  read  as  the  appellants 
contend,  then  in  my  opinion  the  contracts  never  were  valid. 
They  were  void  from  the  outset  on  grounds  of  public  policy.  It 
is  incidental  to  the  conduct  of  war  that  the  Sovereign  should  be 
free  to  bring  pressure  to  bear  on  the  enemy  by  crippling  his 
commerce  and  exhausting  his  resources;  it  is  incidental  to  the 
conduct  of  war  that  the  resources  of  the  Sovereign's  subjects 
should  be  free  to  be  employed  lawfully  in  preserving  and  ex- 
tending the  resources  of  the  realm.  It  is  further  important  to 
its  conduct  that  there  should  be  no  clog  on  the  Sovereign's 
power  to  impose  his  will  on  the  enemy  through  fear  of  the  inclu- 
sion of  unfavourable  economic  conditions  in  any  treaty  of  peace. 
The  present  contract  involves  large  sums.  Your  Lordships  were 
told  that  its  future  performance  represents  10,000,000?.  to  the 
buyers,  and  it  well  may  be  so.  Multiply  these  contracts,  say,  a 
hundredfold — no  extravagant  hypothesis — and  what  is  the  result 
on  the  conduct  of  the  war?  If  these  suspensory  clauses  are 
valid,  the  enemy  knows  three  things:  the  first,  that  he  may  ex- 
pend certain  of  his  material  resources  without  stint,  for  his  right 
to  replenish  them  in  enormous  quantities  is  assured  at  or  shortly 
after  the  conclusion  of  peace;  the  second,  that  the  present  em- 
ployment of  these  raw  materials  as  British  resources  during  the 
war,  whether  in  the  way  of  commerce  or  in  the  actual  supply  of 
combatant  needs,  is  hampered  by  the  existence  of  huge  future 
commitments,  performable  at  an  uncertain  and  perhaps  not  dis- 
tant date;  the  third,  that  he  may  rest  assured  that  the  imposi- 
tion of  commercial  disadvantages  in  the  treaty  of  peace  is  pro 
tanto  neutralized,  and  that  military  resistance  may  be  prolonged 
in  proportion.  I  think  it  is  plain,  as  it  was  thought  by  the 
Courts  below,  that  such  suspensive  clauses  as  are  in  question 
here  tend  to  defeat  the  successful  conduct  of  the  war  on  His 


NOTE.  495 

Majesty's  part,  and  are  therefore  contrary  to  public  policy  and 
render  the  contracts  void. 

My  Lords,  I  do  not  forget  how  limited  is  the  extent  to  which 
Courts  of  law  can  guide  their  decisions  by  their  views  of  public 
policy,  nor  am  I  insensible  to  the  fact  that  in  given  circum- 
stances, perhaps  in  circumstances  as  they  are  now,  more  profits 
may  be  lost  by  British  than  by  enemy  subjects,  if  all  mutually 
executory  trading  contracts  are  discharged  on  the  outbreak  of 
war.  How  this  may  be,  in  my  opinion  a  Court  of  law  is  not 
competent  to  inquire  or  decide.  Is  it  to  be  guided  by  the  sums 
involved,  the  profits  in  prospect,  or  the  economic  value  of  the 
particular  commodity  to  the  general  commerce  and  industry  of 
the  nation?  Is  it  to  call  upon  private  parties  to  give  evidence 
of  the  existence  of  contracts  (probably  jealously  concealed)  to 
which  others  are  parties  and  they  are  strangers?  It  is  for  the 
Executive  to  investigate  and  for  the  Legislature  to  provide  for 
such  possibilities.  All  that  judges  can  do  is  to  adhere  to  estab- 
lished rules,  to  ascertain  their  logical  foundations,  and  to  apply 
them  impartially  to  disputed  cases.  .  .  . 

Order  of  the  Court  of  Appeal  affirmed  and  appeal  dismissed 
with  costs. 

[LORD  DUNEDIN,  LORD  ATKINSON  and  LORD  PARKER  of  "Wad- 
dington  delivered  concurring  opinions.] 

NOTE. — The  effect  of  the  outbreak  of  war  on  existing  contracts  with 
alien  enemies  is  one  of  great  complexity,  for  much  depends  upon  the 
form  of  the  particular  contract  involved.  Futhermore  the  question  is 
primarily  one  of  municipal  rather  than  of  international  law  and  may 
be  differently  treated  in  different  countries.  It  is  universally  recognized 
that  a  state  may  suspend  and  in  some  cases  even  abrogate  contracts 
made  by  its  subjects  with  alien  enemies.  The  Anglo-American  rule 
is  that  executory  contracts  made  with  alien  enemies  before  the  out- 
break of  war  are  suspended  but  not  abrogated,  but  if  the  con- 
tract is  one  that  is  by  nature  incapable  of  suspension,  as  a 
partnership,  Grip  wold  v.  Waddington  (1818),  18  Johnson  (N.  Y.), 
438;  or  one  which  involves  trade  with  the  enemy,  Esposito  v. 
Bowden  (1857),  7  E.  &  B.  763;  The  Teutonia  (1872),  L.  R.  4 
P.  C.  171;  The  William  Bagaley  (1867),  5  Wallace,  377;  Zinc 
Corporation  v.  Hirsch  (1915),  L.  R.  [1916]  1  K.  B.  541;  or  one  in 
which  time  is  of  the  essence,  New  York  Life  Insurance  Co.  v.  Statham 
(1876),  93  U.  S.  24;  or  one  the  performance  of  which  is  bound  to 
inure  to  the  benefit  of  the  enemy,  Furtado  v.  Rogers  (1802),  3  B.  & 
P.  191,  the  contract  is  entirely  abrogated.  In  the  case  of  a  partner- 
ship an  express  agreement  among  the  partners  that  the  association 
shall  not  be  dissolved  by  war  is  ineffective,  Mayer  v.  Garvan  (1920), 
270  Fed.  229.  A  contract  between  English  and  German  firms  for 


496  THE  RULE  OF  NON-INTERCOURSE. 

ninety-nine  years  with  a  provision  for  its  suspension  during  such 
period  as  its  operation  should  be  prevented  by  "an  unavoidable  cause" 
was  terminated  by  the  outbreak  of  war  between  England  and  Ger- 
many since  the  suspension  clause  was  against  public  policy.  Fried 
Krupp,  A.  G.  v.  Orcanera  Iron  Ore  Co.  (1919),  35  T.  L.  R.  234.  If  post- 
ponement of  performance  of  the  contract  alters  the  contract  itself, 
it  is  dissolved  by  war,  Distington  Hematite  Iron  Co.  v.  Possehl  &  Co. 
(1916),  L.  R.  [1916]  1  K.  B.  811.  It  has  been  suggested  that  con- 
tracts between  alien  enemies  the  performance  of  which  is  made  im- 
possible by  the  outbreak  of  war  are  dissolved  because  of  an  implied 
condition  to  that  effect,  Horlock  v.  Beal  (1916),  L.  R.  [1916]  1  A.  C. 
486.  Compare  Tamplin  S.  S.  Co.  v.  Anglo-Mexican  Petroleum  Products 
Co.  (1916),  L.  R.  [1916]  2  A.  C.  397. 

For  discussions  of  the  effect  of  war  on  the  most  important  kinds 
of  contracts  see  Esposito  v.  Bowden  (1857),  7  E.  &  B.  763,  Avery  v. 
Bowden  (1855),  25  L.  J.  Q.  B.  49,  26  L.  J.  Q.  B.  3  (affreightment); 
Ward  v.  Smith  (1869),  7  Wallace,  447,  United  States  v.  Grossmayer 
(1870),  9  Wallace,  72,  Washington  University  v.  Finch  (1873),  18 
Wallace,  106,  New  York  Life  Insurance  Co.  v.  Davis  (1877),  95  U.  S. 
425,  Williams  v.  Paine  (1898),  169  U.  S.  55  (agency);  Brandon  v. 
Curling  (1803),  4  East,  410,  The  Jan  Frederick  (1804),  5  C.  Robinson, 
128,  The  Boedes  Lust  (1804),  5  Ib.  233,  Furtado  v.  Rogers  (1802),  3 
B.  &  P.  191,  Nigel  Gold  Mining  Co.  v.  Hoade  (1901),  2  K.  B.  849  (in- 
surance of  goods  against  capture);  W.  L.  Ingle,  Lt.,  v.  Mannheim  In- 
surance Co.  (1914),  L.  R,  [1914]  1  K.  B.  227  (ordinary  marine  insur- 
ance);  Semmes  v.  Hartford  Insurance  Co.  (1871),  13  Wallace,  158 
(fire  insurance);  New  York  Life  Insurance  Co.  v.  Statham  (1876), 
93  U.  S.  24,  New  York  Life  Insurance  Co.  v.  Davis  (1877),  95  U.  S. 
425  (life  insurance);  Antoine  v.  Morshead  (1815),  6  Taunton,  237 
(negotiable  instruments);  The  William  Bagaley  (1867),  5  Wallace 
377,  Matthews  v.  McStea  (1875),  91  U.  S.  7,  Douglas  v.  United  States 
(1878),  14  Ct.  Cl.  1;  The  Derfflinger  (No.  3),  (Egypt,  1915),  1  Br.  & 
Col.  P.  C.  643;  The  Clan  Grant  (1915),  1  Ib.  272;  Rossie  v.  Garvan 
(1921),  274  Fed.  447  (partnership);  Tingley  v.  Miiller  (1917),  L.  R. 
[1917]  2  Ch.  144  (power  of  attorney  for  sale  of  land).  For  a  care- 
ful discussion  of  public  policy  as  a  ground  for  the  voiding  of  con- 
tracts with  alien  enemies  see  the  opinion  of  Justice  McCardie  in 
Nay  lor,  Benzon  &  Co.  Lt.  v.  Krainische  Industrie  Gesellschaft  (1918), 
L.  R.  [1918]  1  K.  B.  331. 

In  the  case  of  an  executed  contract  made  with  an  alien  enemy  be- 
fore the  outbreak  of  war,  and  the  performance  is  on  his  side,  his 
remedy  is  suspended  during  the  continuance  of  the  war,  Alcinous  v. 
Nigreu  (1854),  4  E.  &  B.  217;  and  so  also  of  a  debt  due  and  payable 
to  an  alien  enemy  before  the  outbreak  of  war,  Ex  parte  Boussmaker 
(1806),  13  Vesey,  71.  But  an  alien  residing  in  the  country  by  leave 
of  the  Crown  and  probably  a  domiciled  alien  without  a  special  license 
may  sue  during  the  war,  Wells  v.  Williams  (1697),  1  Salkeld,  45.  It 
has  even  been  held  that  a  resident  alien  enemy,  duly  registered  as 
such,  may  sue  on  a  contract  with  a  native  citizen  even  though  he  is 
interned,  since  the  restraint  of  internment  does  not  in  itself  affect 


HANGER  v.  ABBOTT.  497 

his  status,  Schaffenius  v.  Goldberg  (1915),  L.  R.  [1916]  1  K.  B.  284. 

War  touches  the  contractual  relation  of  belligerents  so  acutely  that 
much  has  been  written  upon  it.  The  cases  are  well  analyzed  in 
Trotter,  The  Law  of  Contract  During  and  After  War;  Campbell,  The 
Law  of  War  and  Contract,  Including  the  Present  War  Decisions  at 
Home  and  Abroad;  Phillipson,  The  Effect  of  War  on  Contracts;  Leslie 
Scott,  The  Effect  of  War  on  Contracts;  McNair,  Essays  and  Lectures 
upon  Some  Legal  Effects  of  War.  See  also  Willson,  "The  Insurance 
of  Foreign  Property  in  War  Time,"  Law  Quarterly  Review,  XXXII, 
373,  XXXIII,  15;  Hall,  "The  Effect  of  War  on  Contracts,"  Columbia 
Law  Review,  XVIII,  325;  Borchard,  sec.  46;  Cobbett,  Cases  and  Opin- 
ions, II,  67,  87;  Hyde,  II,  209;  Moore,  Digest,  VII,  244. 


SECTION  3.    EFFECT  OF  WAS  ON  JUDICIAL  REMEDIES. 
HANGER  v.  ABBOTT. 

SUPBEME  COURT  OF  THE  UNITED  STATES.      1868. 

6  Wallace,  532. 

Error  to  the  Circuit  Court  for  the  Eastern  District  of 
Arkansas. 

J.  &  E.  Abbott,  of  New  Hampshire,  sued  Hanger,  of  Arkan- 
sas, in  assumpsit.  The  latter  pleaded  the  statute  of  limitations  of 
Arkansas,  which  limits  such  action  to  three  years.  The  former 
replied  the  rebellion,  which  broke  out  after  the  cause  of  action 
accrued,  and  closed  for  more  than  three  years  all  lawful  courts. 
On  demurrer,  and  judgment  against  it,  and  error  to  this  court, 
the  question  here  was  simply,  whether  the  time  during  which 
the  courts  in  Arkansas  were  closed  on  account  of  the  rebellion, 
was  to  be  excluded  from  the  computation  of  time  fixed  by  the 
Arkansas  statute  of  limitations  within  which  suits  on  contracts 
were  to  be  brought,  there  being  no  exception  by  the  terms  of  the 
statute  itself  for  any  such  case. 

Mr.  Justice  CLIFFORD  delivered  the  opinion  of  the  court.   .   .    . 

Proclamation  of  blockade  was  made  by  the  President  on  the 
nineteenth  day  of  April,  1861,  and,  on  the  thirteenth  day  of 
July,  in  the  same  year,  Congress  passed  a  law  authorizing  the 
President  to  interdict  all  trade  and  intercourse  between  the 
inhabitants  of  the  States  in  insurrection  and  the  rest  of  the 
United  States.  12  Stat.  at  Large,  1258-257. 


498  THE  RULE  OF  NON-INTERCOURSE. 

War,  when  duly  declared  or- recognized  as  such  by  the  war- 
making  power,  imports  a  prohibition  to  the  subjects,  or  citizens, 
of  all  commercial  intercourse  and  correspondence  with  citizens 
or  persons  domiciled  in  the  enemy 's  country.  The  "William  Bag- 
aley,  5  Wallace,  405;  Jecker  et  al.  v.  Mongomery,  18  Howard, 
111 ;  Wheaton  on  Maritime  Captures,  209.  Upon  this  principle 
of  public  law  it  is  the  established  rule  in  all  commercial  nations, 
that  trading  with  the  enemy,  except  under  a  government  license, 
subjects  the  property  to  confiscation,  or  to  capture  and  con- 
demnation. The  Rapid,  8  Cranch,  155;  The  Hoop,  1  Robinson 
Admiralty,  196. 

Partnership  with  a  foreigner  is  dissolved  by  the  same  event 
which  makes  him  an  alien  enemy,  because  there  is  in  that  case 
an  utter  incompatibility  created  by  operation  of  law  between  the 
partners  as  to  their  respective  rights,  duties,  and  obligations, 
both  public  and  private,  which  necessarily  dissolves  the  relation, 
independent  of  the  will  or  acts  of  the  parties.  Maclachlan  on 
Shipping,  475 ;  Story  on  Partnership,  §  316 ;  Griswold  v.  Wad- 
dington,  15  Johnson,  57;  Same  case,  16  Id.  438.  Direct  conse- 
quence of  the  rule  as  established  in  those  cases  is,  that  as  soon  as 
war  is  commenced  all  trading,  negotiation,  communication,  and 
intercourse  between  the  citizens  of  one  of  the  belligerents  with 
those  of  the  other,  without  the  permission  of  the  government,  is 
unlawful.  No  valid  contract,  therefore,  can  be  made,  nor  can 
any  promise  arise  by  implication  of  law,  from  any  transaction 
with  an  enemy.  Exceptions  to  the  rule  are  not  admitted;  and 
even  after  the  war  has  terminated,  the  defendant,  in  an  action 
founded  upon  a  contract  made  in  violation  of  that  prohibition, 
may  set  up  the  illegality  of  the  transaction  as  a  defence.  Wil- 
lison  v.  Patteson,  7  Taunton,  439.  .  .  . 

Executory  contracts  also  with  an  alien  enemy,  or  even  with  a 
neutral,  if  they  cannot  be  performed  except  in  the  way  of  com- 
mercial intercourse  with  the  enemy,  are  dissolved  by  the  dec- 
laration of  war,  which  operates  for  that  purpose  with  a  force 
equivalent  to  an  act  of  Congress.  Esposito  v.  Bowden,  4  Ellis 
&  Blackburne,  963 ;  Same  case,  7  Id.  763. 

In  former  times  the  right  to  confiscate  debts  was  admitted  as 
an  acknowledged  doctrine  of  the  law  of  nations,  and  in  strictness 
it  may  still  be  said  to  exist,  but  it  may  well  be  considered  as  a 
naked  and  impolitic  right,  condemned  by  the  enlightened  con- 
science and  judgment  of  modern  times.  Better  opinion  is  that 


HANGER  v.  ABBOTT.  499 

executed  contracts,  such  as  the  debt  in  this  case,  although  exist- 
ing prior  to  the  war,  are  not  annulled  or  extinguished,  but  the 
remedy  is  only  suspended,  which  is  a  necessary  conclusion,  on 
account  of  the  inability  of  an  alien  enemy  to  sue  or  to  sustain, 
in  the  language  of  the  civilians,  a  persona  standi  in  judicio. 
1  Kent's  Com.  (llth  ed.),  76;  Flindt  v.  Waters,  15  East.  260. 

Trading,  which  supposes  the  making  of  contracts,  and  which 
also  involves  the  necessity  of  intercourse  and  correspondence,  is 
necessarily  contradictory  to  a  state  of  war,  but  there  is  no  ex- 
igency in  war  which  requires  that  belligerents  should  confiscate 
or  annul  the  debts  due  by  the  citizens  of  the  other  contending 
party. 

We  suspend  the  right  of  the  enemy,  says  Mr.  Chitty,  to  the 
debts  which  our  traders  owe  to  him,  but  we  do  not  annul  the 
right.  We  preclude  him  during  war  from  suing  to  recover  his 
due,  for  we  are  not  to  send  treasure  abroad  for  the  direct  supply 
of  our  enemies  in  their  attempt  to  destroy  us,  but  with  the  re- 
turn of  peace  we  return  the  right  and  the  remedy.  Ghitty  on 
C.  &  M.  423.  .  .  .  Views  of  Mr.  Wheaton  are,  and  they  are 
undoubtedly  correct,  that  debts  previously  contracted  between 
the  respective  subjects,  though  the  remedy  for  their  recovery  is 
suspended  during  war,  are  revived  on  the  restoration  of  peace, 
unless  actually  confiscated  in  the  meantime  in  the  rigorous  ex- 
ercise of  the  strict  rights  of  war,  contrary  to  the  milder  rules  of 
recent  times.  .  .  .  Wheaton 's  International  Law,  by  Law- 
rence, 541-877.  .  .  . 

When  our  ancestors  immigrated  here,  they  brought  with  them 
the  statute  of  21  Jac.  1,  c.  16,  entitled  "An  act  for  limitation 
of  actions,  and  for  avoiding  of  suits  in  law,"  known  as  the 
statute  of  limitations.  .  .  .  Such  statutes  exist  in  all  the 
States.  .  .  . 

Persons  within  the  age  of  twenty-one  years,  femes  covert,  non 
compos  mentis,  persons  imprisoned  or  beyond  the  seas,  were  ex- 
cepted  out  of  the  operation  of  the  third  section  of  the  act,  and 
were  allowed  the  same  period  of  time  after  such  disability  was 
removed.  Just  exceptions  indeed  are  to  be  found  in  all  such 
statutes,  but  when  examined  it  will  appear  that  they  were 
framed  to  prevent  injustice  and  never  to  encourage  laches  or  to 
promote  negligence.  Cases  where  the  courts  of  justice  are  closed 
in  consequence  of  insurrection  or  rebellion  are  not  within  the 
express  terms  of  any  such  exception,  but  the  statute  of  limita- 
tions was  passed  in  1623,  more  than  a  century  before  it  came  to 


500  THE  RULE  OF  NON-INTERCOURSE. 

be  understood  that  debts  due  to  alien  enemies  were  not  subject 
to  confiscation.  Down  to  1737,  says  Chancellor  Kent,  the  opin- 
ion of  jurists  was  in  favor  of  the  right  to  confiscate,  and  many 
maintained  that  such  debts  were  annulled  by  the  declaration  of 
war.  Regarding  such  debts  as  annulled  by  war,  the  law-makers 
of  that  day  never  thought  of  making  provision  for  the  collection 
of  the  same  on  the  restoration  of  peace  between  the  belligerents. 
Commerce  and  civilization  have  wrought  great  changes  in  the 
spirit  of  nations  touching  the  conduct  of  war,  and  in  respect  to 
the  principles  of  international  law  applicable  to  the  subject. 

Constant  usage  and  practice  of  belligerent  nations  from  the 
earliest  times  subjected  enemy's  goods  in  neutral  vessels  to  cap- 
ture and  condemnation  as  prize  of  war,  but  the  maxim  is  now 
universally  acknowledged  that  "free  ships  make  free  goods" 
which  is  another  victory  of  commerce  over  the  feelings  of  avarice 
and  revenge.  Individual  debts,  as  a  general  remark,  are  no 
longer  the  subject  of  confiscation,  and  the  rule  is  universally 
admitted  that  if  not  confiscated  during  the  war,  the  return  of 
peace  brings  with  it  both  ' '  the  right  and  the  remedy. ' '  Wolf  v. 
Oxholm,  6  Maule  &  Selwyn,  92.  ... 

Old  decisions,  made  when  the  rule  of  law  was  that  war  an- 
nulled all  debts  between  the  subjects  of  the  belligerents,  are  en- 
titled to  but  little  weight,  even  if  it  is  safe  to  assume  that  they 
are  correctly  reported,  of  which,  in  respect  to  the  leading  case  of 
Prideaux  v.  Webber,  1  Levinz,  31,  there  is  much  doubt.  Miller 
v.  Prideaux,  1  Keble,  157 ;  Lee  v.  Rogers,  1  Levinz,  110 ;  Hall  v. 
Wybourne,  2  Salked.,  420 ;  Aubrey  v.  Fortescue,  10  Modern,  205, 
are  of  the  same  class,  and  to  the  same  effect.  All  of  those  deci- 
sions were  made  between  parties  who  were  citizens  of  the  same 
jurisdiction,  and  most  of  them  were  made  nearly  a  hundred 
years  before  the  international  rule  was  acknowledged,  that  war 
only  suspended  debts  due  to  an  enemy,  and  that  peace  had  the 
effect  to  restore  the  remedy.  The  rule  of  the  present  day  is,  that 
debts  existing  prior  to  the  war,  but  which  made  no  part  of  the 
reasons  for  undertaking  it,  remain  entire,  and  the  remedies  are 
revived  with  the  restoration  of  peace.  .  .  . 

Text  writers  usually  say,  on  the  authority  of  the  old  cases  re- 
ferred to,  that  the  non-existence  of  courts,  or  their  being  shut, 
is  no  answer  to  the  bar  of  the  statute  of  limitations,  but  Plowden 
says  that  things  happening  by  an  invincible  necessity,  though 
they  be  against  common  law,  or  an  act  of  Parliament,  shall  not 
be  prejudicial,  that,  therefore,  to  say  that  the  courts  were  shut, 


RODRIGUEZ  v.  SPEYER  BROTHERS.  501 

is  a  good  excuse  on  voucher  of  record.  Brooke,  tit.  Failure  of 
Record;  Blanshard  on  Limitations,  163;  6  Bacon's  Ab.  395;  1 
Plowden,  9  b.  Exceptions  not  mentioned  in  the  statutes  have 
sometimes  been  admitted,  and  this  court  held  that  the  time 
which  elapsed  while  certain  prior  proceedings  were  suspended 
by  appeal,  should  be  deducted,  as  it  appeared  that  the  injured 
party  in  the  meantime  had  no  right  to  demand  his  money,  or  to 
sue  for  the  recovery  of  the  same;  and  in  view  of  those  circum- 
stances, the  court  decided  that  his  right  of  action  had  not  ac- 
crued so  as  to  bar  it,  although  not  commenced  within  six  years. 
Montgomery  v.  Hernandez,  12  Wheaton,  129.  But  the  exception 
set  up  in  this  case  stands  upon  much  more  solid  reasons,  as  the 
right  to  sue  was  suspended  by  the  acts  of  the  government,  for 
which  all  the  citizens  are  responsible.  Unless  the  rule  be  so,  then 
the  citizens  of  a  State  may  pay  their  debts  by  entering  into  an 
insurrection  or  rebellion  against  the  government  of  the  Union,  if 
they  are  able  to  close  the  courts,  and  to  successfully  resist  the 
laws,  until  the  bar  of  the  statute  becomes  complete,  which  can- 
not for  a  monent  be  admitted.  Peace  restores  the  right  and  the 
remedy,  and  as  that  cannot  be  if  the  limitation  continues  to  run 
during  the  period  the  creditor  is  rendered  incapable  to  sue,  it 
necessarily  follows  that  the  operation  of  the  statute  is  also  sus- 
pended during  the  same  period.  .  .  . 

Judgment  affirmed  with  costs. 


RODRIGUEZ,  Appellant  v.  SPEYER  BROTHERS,  Re- 
spondents. 

HOUSE  OF  LORDS  OF  GREAT  BRITAIN.     1918. 
Law  Reports  [1919]  A.  C.  59. 

Appeal  from  an  order  of  the  Court  of  Appeal  reversing  an 
order  of  Peterson  J.  in  chambers. 

The  respondents  carried  on  business  in  partnership  as  bankers 
in  London  until  the  outbreak  of  the  war,  when  the  partnership 
was  ipso  facto  dissolved  owing  to  one  partner  having  become  an 
alien  enemy.  There  were  five  other  partners,  of  whom  four  were 
British  subjects  and  the  fifth  was  an  American  citizen. 

An  action  was  commenced  in  1916  by  the  respondents  in  the 
partnership  name  against  the  appellant  for  recovery  of  a  debt 
alleged  to  have  accrued  before  the  war.  Judgment  was  signed 


502  THE  RULE  OF  NON-INTERCOURSE. 

by  the  respondents  against  the  appellant  in  default  of  appear- 
ance, but  this  judgment  was  set  aside  by  the  Master  upon  the 
ground  that  the  respondents  had  no  right  to  sue,  [because  one 
of  them,  Eduard  Beit  von  Speyer,  was  an  alien  enemy,]  and 
the  order  of  the  Master  was  confirmed  by  Peterson  J.  The 
Court  of  Appeal,  by  a  majority  (Bankes  L.  J.  and  Sargant  J., 
Pickford  L.  J.  dissenting) ,  set  aside  the  orders  of  the  Master  and 
the  learned  judge,  and  remitted  the  case  to  the  Master  for  re- 
hearing on  the  merits.  87  L.  J.  (K.  B.)  171.  .  .  . 

LORD  FINLAY  L.  C.  My  Lords,  the  question  in  this  case  is 
whether  a  judgment  signed  against  the  present  appellant,  in  de- 
fault of  appearance,  should  be  set  aside  on  the  ground  that  one 
of  the  plaintiffs  is  an  alien  enemy.  .  .  . 

On  the  dissolution  of  the  firm  on  the  outbreak  of  the  war  the 
affairs  of  the  partnership  had  to  be  liquidated,  and  this,  of 
course,  involved  getting  in  the  assets.  For  the  purpose  of  the 
liquidation  the  firm  still  existed  and  the  other  partner  had  the 
right  to  use  the  name  of  Eduard  Beit  von  Speyer  in  any  litiga- 
tion necessary  for  the  purpose  of  getting  in  the  assets.  The  writ 
was  in  the  name  of  the  firm,  which  had  the  same  effect  as  if  the 
names  of  the  individual  partners  had  been  set  out. 

It  was  contended  for  the  appellant  that  the  respondents'  ac- 
tion is  incompetent,  on  the  ground  that  Eduard  Beit  von  Speyer 
is  a  co-plaintiff,  and  that  an  enemy  alien  cannot  sue  in  the 
King's  courts.  This  contention  depends  on  the  proposition  that 
there  is  an  inflexible  rule  of  law  against  any  action  in  the  King 's 
courts  by  an  alien  enemy  suing  either  alone  or  together  with 
others.  Peterson  J.  at  Chambers,  and  Pickford  L.  J.  in  the 
Court  of  Appeal,  held  that  there  is  a  settled  rule  of  law  to  this 
effect,  while  Bankes  L.  J.  and  Sargant  J.  held  that  the  rule  does 
not  apply  in  such  a  case  as  the  present. 

There  is  no  doubt  that,  as  a  general  rule,  an  alien  enemy  can- 
not bring  an  action  in  the  King's  courts  as  plaintiff,  though  he 
may,  of  course,  be  made  a  defendant.  The  rule  seems  to  have 
its  origin  in  two  considerations.  Firstly,  that  the  subject  of  a 
country  then  at  Avar  with  the  King  is  in  this  country,  unless  he 
be  here  with  the  King's  permission,  exlex,  and  that  he  cannot 
come  into  the  King's  courts  to  sue  any  more  than  could  an  out- 
law; and  secondly,  that  the  King's  courts  will  give  no  assistance 
to  proceedings  which,  if  successful,  would  lead  to  the  enrichment 
of  an  alien  enemy,  and  therefore  would  tend  to  provide  his  coun- 


RODRIGUEZ  v.  SPEYER  BROTHERS.  503 

try  with  the  sinews  of  war.  The  rule  is  founded  on  public  pol- 
icy; but  any  such  rule  of  law  must  be  observed,  even  if  there 
are  circumstances  in  any  particular  case  which  make  its  enforce- 
ment contrary  to  public  policy,  and  indeed  detrimental  to  the 
interests  of  this  country.  If,  however,  there  may  be  a  state  of 
circumstances  in  which  to  prevent  an  alien  enemy  from  being  a 
party  to  an  action  as  plaintiff  would  do  much  more  harm  to 
British  subjects  or  to  friendly  neutrals  than  to  the  enemy,  this 
is  a  consideration  most  material  to  be  taken  into  account  in  de- 
termining whether  such  a  case  falls  within  the  true  scope  and 
extent  of  the  rule.  If  the  particular  case  is  outside  the  rule,  to 
apply  it  might  be  not  merely  contrary  to  public  policy  but  also 
a  mistake  in  law. 

It  was  urged  in  support  of  the  decision  of  the  Court  of  Ap- 
peal in  the  present  case  that,  where  there  is  a  firm  consisting  of 
British  subjects  and  an  alien  who  becomes  an  enemy  on  the  out- 
break of  war,  the  partnership  is  ipso  facto  dissolved,  and  that  to 
apply  the  supposed  rule  to  such  a  case  would  cause  great  in- 
convenience and  possibly  most  serious  loss  to  the  British  mem- 
bers of  the  firm,  by  making  it  impossible  for  them  to  get  in  the 
firm's  assets.  The  question  raised  is  one  of  great  interest,  and 
involves  a  close  inquiry  into  the  precise  nature  and  extent  of 
the  rule  of  law  on  the  point. 

One  answer  given  to  the  argument  ab  inconvenienti  was  that 
the  Trading  with  the  Enemy  Amendment  Act,  1916  (5  &  6  Geo. 
5,  c.  105),  has  by  s.  4  provided  machinery  by  which  this  incon- 
venience may  be  obviated  by  vesting  the  interest  of  the  enemy 
alien  in  the  custodian  appointed  under  the  earlier  statute  of  5 
Geo.  5,  c.  12,  who  might  join  as  a  co-plaintiff  so  as  to  get  in  the 
assets.  The  question,  however,  must  be  considered  apart  from 
the  effect  of  this  Act,  as  the  rule  of  law  on  the  subject  must  have 
come  into  existence  long  before  the  passing  of  these  Acts  for  the 
custody  of  enemy  property,  which  have  had  the  incidental  effect 
of  providing  a  method  by  which  the  difficulty  in  question  might 
'  be  got  over.  If  the  5  &  6  Geo.  5,  c.  105,  had  been  passed  specifir 
cally  with  the  object  of  removing  this  difficulty,  it  would,  of 
course,  have  afforded  most  cogent  ground  for  the  conclusion  that 
the  difficulty  existed,  but  no  such  conclusion  can  be  drawn  from 
the  fact  that  legislation  of  a  general  nature  for  the  custody  of 
enemy  property  may  incidentally  have  this  effect.  I  therefore 
propose  to  consider  the  question  what  the  rule  of  law  is,  apart 
from  the  legislation  of  1915  and  1916. 


504  THE  RULE  OF  NON-INTERCOURSE. 

The  proposition  that  an  alien  enemy  cannot  bring  an  action 
in  this  country  has  been,  often  laid  down.  The  question  which 
now  for  the  first  time  falls  to  be  determined  is  whether  the  rule 
forbidding  such  an  action  during  the  continuance  of  the  war 
is  unqualified,  and,  in  particular,  whether  it  applies  to  a  case  in 
which,  for  the  winding  up  of  the  affairs  of  a  partnership  dis- 
solved by  the  outbreak  of  war,  there  is  joined  as  a  co-plaintiff 
one  who,  having  been  a  partner  when  war  broke  out,  thereon 
became  an  enemy  alien.  There  is  no  doubt  that,  as  a  general 
rule,  an  action  by  an  alien  enemy  might  be  met  by  a  plea  in 
abatement,  while  a  contract  made  with  an  alien  enemy  during 
the  war  was  void,  and  might  be  met  by  a  plea  in  bar.  But  the 
general  terms  in  which  the  rule  has  been  laid  down  do  not  carry 
us  very  far  in  dealing  with  the  special  circumstances  of  the  pres- 
ent case.  The  question  is  whether  the  rule  applies  so  as  to  pre- 
vent British  subjects  during  the  war  from  recovering  a  debt 
which  had  been  contracted  in  their  favour  jointly  with  one  who 
has  since  become  an  enemy.  It  is  obvious  that,  if  the  rule  does 
extend  to  such  a  case,  British  partners  could  not  get  in  their 
assets  until  the  war  was  over.  They  would  be  non-suited  for  not 
having  joined  their  co-contractor  as  a  plaintiff  if  they  left  him 
out,  and  the  action  would  be  stopped  by  a  plea  in  abatement 
or  on  summons  if  they  put  him  in.  ... 

The  truth  is  that  the  rule  was  one  directed  against  alien 
enemies  and  not  against  British  subjects  or  friendly  neutrals. 
Eduard  Beit  von  Speyer  is  not,  in  point  of  law,  a  trustee,  but 
he  is  under  the  obligation  to  concur  in  getting  in  the  assets  for 
the  benefit  of  the  firm,  and  there  is  no  case  in  which  the  rule 
against  an  enemy  alien  being  allowed  to  sue  has  been  applied 
to  a  case  in  which  he  is  suing  not  in  his  own  interest,  but  be- 
cause his  concurrence  is  necessary  for  the  protection  of  the  in- 
terests of  the  firm.  He  is  not,  in  point  of  law,  suing  en  autre 
droit,  but  he  is  under  a  legal  obligation  to  concur  as  a  necessary 
party  to  an  action  which  must  be  brought  in  the  interests  of  the 
firm, '  and  in  these  circumstances,  in  my  opinion,  his  presence 
either  as  plaintiff  or  defendant  gives  rise  to  none  of  the  objec- 
tions which  have  been  raised  to  suits  by  alien  enemies.  .  .  . 

Upon  the  whole,  my  opinion  is  that  the  judgment  of  the  Court 
of  Appeal  was  right,  and  that  this  appeal  should  be  dismissed 
with  costs. 

VISCOUNT  HALDANE.  My  Lords,  I  think  that  the  answer  to 
the  question  raised  by  this  appeal  turns  on  a  broad  issue  of  prin- 


RODRIGUEZ  v.  SPEYER  BROTHERS.  505 

ciple.  Is  the  rule  which  prevents  an  enemy  alien  from  suing  in 
the  King's  courts  a  crystallised  proposition  which  forms  part 
of  the  ordinary  common  law,  and  is  so  definite  that  it  must  be 
applied  without  reference  to  whether  a  particular  case  involves 
the  real  mischief  to  guard  against  which  the  rule  was  originally 
introduced?  Or  is  the  rule  one  of  what  is  called  public  policy, 
which  does  not  apply  to  a  particular  instance  if  that  instance 
discloses  no  mischief  from  the  point  of  view  of  public  policy? 
Now  there  are  many  illustrations  of  both  kinds  of  rule.  Since, 
for  example,  this  House  in  1833  gave  its  decision  in  Cadell  v. 
Palmer  (1833),  1  Cl.  &  F.  372,  it  has  been  clear  that  private 
property  cannot  for  any  reason,  however  good,  be  rendered  in- 
alienable for  private  ends  beyond  a  period  of  lives  in  being  and 
twenty-one  years  afterwards.  And  yet  at  one  time  this  period 
was  not  defined,  and  the  motive  which  led  to  its  prescription 
in  a  definite  form  was  that  restraint  on  alienation  was  consid- 
ered to  be  required  by  public  policy.  That  this  was  the  genesis 
of  the  restriction  is  shown  by  the  fact  that  it  has  not  been  ap- 
plied to  charitable  trusts  where  the  public  itself  benefits  by  in- 
alienability. Yet  the  rule  has  in  other  cases  become  a  hard  and 
fast  one,  to  which  no  exception  is  tolerated  to-day,  for  however 
excellent  a  reason.  On  the  other  hand,  there  are  cases  of  a  dif- 
ferent kind,  on  which  decisions  have  been  given  based  merely  on 
public  policy  accepted  as  matter  of  fact,  and  not  on  really  legal 
principle,  in  a  fashion  which  has  always  been  made  to  depend 
on  the  particular  circumstances  of  each  case,  and  has  rendered 
the  question  in  reality  one  of  fact  for  the  Court,  not  the  less 
that  it  was  fact  of  which  the  Court  would  take  judicial  notice 
on  its  own  initiative  if  necessary.  Such  were  the  cases  on 
wagers  in  the  days  when  they  were  enforced — cases  in  which, 
as  was  said  by  Parke  B.  in  advising  this  House  in  Egerton  v. 
Earl  Brownlow  (1853),  4  H.  L.  C.  1,  124:  "Courts  have  been 
anxious  to  discountenance  all  wagers  in  which  the  parties  have 
had  no  interest,  and  been  astute,  even  to  an  extent  bordering 
upon  the  ridiculous,  to  find  reasons  for  refusing  to  enforce 
them."  Thus  a  wyager  on  the  duration  of  the  life  of  Napoleon 
was  held  void,  because  it  might  give  the  plaintiff  an  interest 
in  keeping  the  King's  enemy  alive,  and  also  on  his  death,  be- 
cause it  might  give  the  defendant  an  interest  in  compassing  it 
by  means  other  than  lawful  warfare:  Gilbert  v.  Sykes  (1812), 
16  East,  150.  Again,  when  a  proprietor  of  carriages  for  hire 
in  a  town  had  made  a  bet  that  a  particular  person  would  go  to 


506  THE  RULE  OF  NON-INTERCOURSE. 

the  assembly  rooms  in  his  own  carriage  and  not  in  another's,  it 
was  considered  that  the  bet  was  void,  as  possibly  tending  to 
hamper  the  freedom  of  a  member  of  the  public  in  choosing  his 
own  conveyance,  and  to  expose  him  to  the  inconvenience  of 
being  importuned  by  rival  coachmen:  Eltham  v.  Kingsman 
(1818),  1  B.  &  Al.  683.  It  was  true  that  in  such  cases  the  judges 
were,  as  the  Lord  Chief  Baron  said  in  advising  in  Egerton  v. 
Earl  Brownlow,  4  H.  L.  C.  151,  "no  better  able  to  discern  what 
is  for  the  public  good  than  other  experienced  and  enlightened 
members  of  the  community;  but  that  is  no  reason  for  their  re- 
fusing to  entertain  the  question,  and  declining  to  decide  upon 
it."  Nevertheless,  it  happens  that  the  question  to  be  so  decided 
is  not  one  of  law  as  distinguished  from  ethics,  and  therefore, 
in  Egerton  v.  Earl  Brownlow,  4  H.  L.  C.  151,  the  majority  of 
the  Law  Lords,  including  notably  Lord  St.  Leonards,  laid  down 
that  limitations  in  a  devise  under  which  the  estates  settled  were 
to  go  over  if  the  possessor  for  the  time  being  did  not  acquire  a 
dukedom  were  bad,  simply  because  of  a  mischievous  tendency 
which  might  result  in  improper  attempts  to  inflence  the  discre- 
tion of  the  Sovereign  as  the  fountain  of  honour.  It  was  cer- 
tainly the  opinions  of  men  of  the  world,  as  distinguished  from 
opinions  based  on  legal  learning,  which  guided  this  House  to  its 
conclusion  in  that  appeal.  It  may,  in  a  qualified  sense,  be  tr.ue, 
as  Lord  Halsbury  observed  in  Janson  v.  Brief ontein  Consolidated 
Mines,  [1902]  A.  C.  491,  that  the  Courts  cannot  invent  new  heads 
of  public  policy,  and  that  when  it  is  said  that  things  are  un- 
lawful because  they  are  contrary  to  public  policy,  it  is  meant 
that  they  have  either  been  enacted  or  assumed  to  be  unlawful 
by  the  common  law,  and  not  because  a  Court  has  any  right  to 
declare  them  to  be  so.  But  the  observation  must  be  taken  with 
the  qualification  that  what  the  law  recognises  as  contrary  to 
public  policy  turns  out  to  vary  greatly  from  time  to  time. 
Since,  for  example,  Hull  J.,  as  quoted  in  Egerton  v.  Earl  Brown- 
low,  4  H.  L.  C.  238,  was  moved  to  anger  at  a  bond  with  a  con- 
dition that  if  the  grantor  did  not  for  six  months  exercise  his 
craft  as  a  dyer  within  the  town  where  he  carried  on  business  the 
bond  should  be  void,  and  is  reported  to  have  said,  "Per  Dieu, 
if  he  were  here,  to  prison  he  should  go,"  the  law  must  have  al- 
tered much  in  the  interval  if  Lord  Halsbury 's  statement  is  to  be 
taken  literally. 

My  Lords,  I  think  that  there  are  many  things  of  which  the 
judges  are  bound  to  take  judicial  notice  which  lie  outside  the 


BODRIGUEZ  v.  SPEYEE  BROTHERS.  507 

law  properly  so  called,  and  among  those  things  are  what  is 
called  public  policy  and  the  changes  which  take  place  in  it.  The 
law  itself  may  become  modified  by  this  obligation  of  the  judges. 
In  Nordenfeldt  v.  Maxim-Nordenfeldt  Guns  and  Ammunition 
Co.,  [1894]  A.  C.  535,  553,  the  appellant  had  covenanted  that 
he  would  not  for  twenty-five  years  engage,  except  on  behalf  of 
the  respondents,  to  whom  he  had  sold  his  business,  in  the  man- 
ufacture of  guns  or  ammunition.  It  was  held  by  this  House 
that  although  the  covenant  was  unrestricted  as  to  space  it  was 
not  wider  than  was  required  for  the  protection  of  the  company, 
and  was  not  injurious  to  the  public  interest.  As  Lord  Herschell 
pointed  out,  in  early  times  all  agreements  in  restraint  of  trade, 
whether  general  or  restricted  to  a  particular  area,  used  to  be 
held  bad.  Later  on  there  grew  up  a  distinction  between  cove- 
nants in  general  restraint  and  those  in  which  the  restraint  was 
only  partial.  That  attempts  at  general  restraint  were  at  one  time 
regarded,  under  all  circumstances,  as  void,  in  accordance  with  a 
rule  which  had  been  recognised  as  part  of  the  law,  he  thought 
was  true.  But  means  of  communication  had  so  changed  that  the 
reason  for  the  distinction  was  gone,  and  the  proper  view  seemed 
to  be  that  what  was  once  a  settled  principle  was  no  longer  ap- 
plicable in  altered  conditions.  Lord  Watson  agreed.  "A  series 
of  decisions,"  he  said,  "based  upon  grounds  of  public  policy, 
however  eminent  the  judges  by  whom  they  were  delivered,  can- 
not possess  the  same  binding  authority  as  decisions  which  deal 
with  and  formulate  principles  which  are  purely  legal.  .  .  . 
In  England,  at  least,  it  is  beyond  the  jurisdiction  of  her  tribu- 
nals to  mould  and  stereotype  national  policy.  Their  function, 
when  a  case  like  the  present  is  brought  before  them,  is,  in  my 
opinion,  not  necessarily  to  accept  what  was  held  to  have  been  the 
rule  of  policy  a  hundred  or  a  hundred  and  fifty  years  ago,  but 
to  ascertain,  with  as  near  an  approach  to  accuracy  as  circum- 
stances permit,  what  is  the  rule  of  policy  for  the  then  present 
time."  Lord  Macnaghten  put  the  same  view  in  his  own  words,' 
and  cites  the  well-known  judgment  of  Tindal  C.  J.  in  Horner 
v.  Graves  (1831),  7  Bing.  735,  as  showing  that  the  real  founda- 
tion of  the  distinction  between  partial  and  general  restraints  is 
the  desire  to  illustrate  a  rule  which  can  only  rest  at  last  on  what 
is  a  reasonable  restraint  with  reference  to  the  particular  case. 
When  the  possibilities  of  communication  became  extended  it 
was  thus  only  a  legitimate  development — it  was  hardly  even  an 
extension — of  the  principle  on  which  exceptions  were  first  al- 


508  THE  RULE  OF  NON-INTERCOURSE. 

lowed,  to  admit  unlimited  restraints  into  the  class  of  allowable 
exceptions  to  the  general  rule. 

My  Lords,  I  think  that  the  change  in  the  view  taken  of  the 
law  as  to  covenants  in  restraint  of  trade,  and  the  illustration 
it  affords  of  the  fashion  in  which  decisions  which  were  right  in 
their  time  may  cease  to  be  of  valid  application,  are  highly  in- 
structive. For  they  show  that  between  the  class  of  cases  in 
which,  as  in  the  instances  of  the  rule  against  perpetuities,  the 
law,  although  originally  based  on  public  policy,  has  become  so 
crystallised  that  only  a  statute  can  alter  it,  and  the  different 
class,  such  as  that  of  the  cases  relating  to  wagers,  in  which  the 
principle  of  public  policy  has  never  crystallised  into  a  definite 
or  exhaustive  set  of  propositions,  there  lies  an  intermediate  class. 
Under  this  third  category  fall  the  instances  in  which  public  pol- 
icy has  partially  precipitated  itself  into  recognised  rules  which 
belong  to  law  properly  so  called,  but  where  these  rules  have  re- 
mained subject  to  the  moulding  influence  of  the  real  reasons 
of  public  policy  from  which  they  proceeded.  And  I  think  that 
the  decisive  question  before  us  is  whether  the  doctrine  of  law 
which  the  Court  of  Appeal  has  dealt  with  in  the  present  in- 
stance belongs  to  the  first  class  or  to  the  third.  This  is  a  point 
on  which,  in  Lord  Watson's  language,  the  bare  fact  that  deci- 
sions were  given  a  long  time  ago  cannot  be  conclusive.  Before 
considering  the  question  to  which  class  the  principle  applied  in 
the  judgments  before  belongs  I  turn  to  the  record  to  see  what 
was  actually  decided  in  the  case  under  appeal.  .  .  . 

My  Lords,  it  will  be  observed  that  all  that  has  been  decided 
is  that  the  action  may  proceed.  Nothing  has  been  settled  as  to 
what  is  to  be  done  with  the  money  if  recovered,  and  it  may  still 
be  directed  to/  be  paid  into  court  or  to  the  custodian.  The  ques- 
tion which  goes  to  the  root  of  the  controversy  is  whether,  under 
these  circumstances,  the  Court  of  Appeal  was  right  in  deciding 
even  as  much  as  this.  It  is  said  that  unless  the  action  is  allowed 
to  proceed  the  liquidation  of  the  partnership  affairs  cannot  be 
concluded,  as  a  substantial  asset  cannot  be  got  in,  and  that  the 
interests  of  British  subjects  and  others  unquestionably  entitled 
to  sue  will  be  prejudiced.  It  is  also  said  that  the  action  is  really 
brought  as  a  mere  step  in  the  liquidation,  as  much  as  if  it  had 
been  brought  by  a  receiver  in  the  name  of  the  partners  and  for 
the  purpose  of  realization  out  of  the  assets.  As  against  this  it 
is  said  that  the  action  is  no  more  than  one  by  six  joint  contract- 
ors to  recover  a  debt  due  to  them  jointly,  and  that,  as  the  alien 


RODRIGUEZ  v.  SPEYER  BROTHERS.  509 

enemy  being  one  of  those  was  bound  to  be  a  party,  the  action  is 
not  maintainable. 

My  Lords,  if  the  question  were  one  of  mere  convenience  and 
to  be  decided  by  the  test  of  whether  the  allowance  of  the  action 
would  result  in  injury  to  the  public  interests,  I  should  have 
little  hesitation  in  saying  that  it  ought  to  be  allowed.  The  legis- 
lation which  has  established  the  office  and  duties  of  the  custodian 
provides  ample  means  for  insuring  that  the  enemy  partner 
should  not  enrich  himself  during  the  war  if  any  balance  from 
the  sum  sought  to  be  recovered  were  to  be  adjudged  recoverable, 
and  it  is  not  desirable  that  money  due  from  a  defendant  who  is 
living  abroad  should  be  delayed  in  recovery.  But  whether  the 
question  is  one  of  convenience  is  irrelevant  if  the  case  belongs 
to  the  first  of  the  classes  to  which  I  have  referred — that  in  which 
the  principle  is  so  definitely  crystallised  as  part  of  the  common 
law  that  it  is  inadmissible,  notwithstanding  that  the  original 
foundation  of  the  principle  may  have  been  the  convenience  of 
the  State,  to  go  behind  the  rule  to  see  whether  the  reason  for  it 
applies  in  a  particular  case.  In  order  to  determine  how  the 
law  stands  on  the  point  it  is  necessary  to  examine  the  au- 
thorities; for  if  these  lay  down  the  principle  consistently 
and  clearly  as  one  of  mere  law,  it  would  not  be  legitimate 
to  act  on  the  footing  that  Lord  Watson  did  in  the  Maxim-Nor- 
denfeldt  case  in  regard  to  covenants  in  restraint  of  trade  when 
he  said  that  decisions  based  on  grounds  of  public  policy  have 
not  the  same  binding  authority  as  decisions  which  "formulate 
principles  which  are  purely  legal." 

We  know  that  when  it  was  said  in  Coke  upon  Littleton  (129b) 
that  an  "alien  enemy  shall  maintain  neither  real  nor  personal 
action,"  public  policy  had  gone  some  way  towards  qualifying 
the  harshness  of  the  rule,  although  through  the  medium  of  a 
different  tribunal.  For  in  the  time  of  Littleton  it  had  already 
been  laid  down  as  to  aliens  who  had  come  into  England  under 
the  King's  safe  conduct  that  their  proper  court  was  that  of 
Chancery,  for  there  "they  are  not  bound  to  sue  according  to 
the  law  of  the  land  nor  to  abide  the  trial  by  twelve  men  and 
other  solemnities  of  the  law  of  the  land,  but  shall  sue  in  the 
Chancery,  and  the  matter  shall  be  determined  by  the  law  of 
nature"  (see  Pollock  and  Maitland's  History  of  English  Law, 
vol.  1,  p.  465).  As  law  and  equity  tended  to  approximate  it  is 
therefore  not  to  be  wondered  at  if  the  rule,  which  may  well  have 
originally  been  stringent  in  the  common  law  tribunals  with  their 


510  THE  KULE  OF  NON-INTERCOURSE. 

local  traditions,  and  which  was  said  to  deny  to  an  alien  enemy 
all  rights  to  invoke  the  assistance  of  the  King's  courts,  became 
less  definite.  Indeed,  as  early  as  the  time  of  Queen  Elizabeth 
in  Brocks  v.  Phillips,  Cro.  Eliz.  683,  the  enemy  administrator 
of  one  who  was  presumably  a  subject  of  the  Crown  was  allowed 
to  sue.  No  doubt  it  was  not  desired  by  the  common  law  judges 
to  drive  him  into  Chancery.  But  the  decisions  of  this  period 
are  certainly  not  consistent,  for  in  an  anonymous  case,  Cro.  Eliz. 
142,  the  attempt  by  an  enemy  alien  executor  to  bring  an  action 
of  debt  was  disallowed,  and  in  another  case  reported  at  p.  45 
of  Owen's  Reports,  31  Eliz.,  the  result  was  the  same.  In  the 
later  text  books,  such  as  Bacon's  Abridgement  (tit.  "Alien"), 
the  question  is  treated  with  distinctness  as  one  of  public  policy, 
and  as  admitting  in  certain  cases  of  doubt.  In  Comyns'  Digest, 
on  the  other  hand  (sub  tit.  "Abatement"),  it  is  said  that  a  plea 
in  abatement  to  the  effect  that  even  one  of  two  of  the  plaintiffs  is 
an  enemy  alien  is  a  good  plea. 

The  later  authorities  undoubtedly  in  many  instances  tend  to 
treat  the  rule  as  one  which  had  become  a  rigid  principle  of  the 
common  law,  but  they  do  not  all  of  them  tend  in  this  direction. 
Daubigny  v.  Davallon,  2  Anst.  462;  the  dictum  of  Sir  William 
Scott  (unnecessary,  however,  for  the  decision)  in  The  Hoop,  1 
C.  Rob.  196;  M'Connell  v.  Hector,  3  B.  &  P.  113;  and  Albrecht 
v.  Sussmann,  2  V.  &  B.  323,  are  all  adverse  to  the  title  to  sue. 
So  is  the  judgment  of  Lord  Kenyon  C.  J.  in  Brandon  v.  Nesbitt, 
6  T.  R.  23,  and  I  think  also  the  judgment  in  Le  Bret  v.  Papillon, 
4  East,  502.  The  former  was  an  action  on  a  marine  policy  by 
a  British  plaintiff,  who,  however,  appeared  on  the  record  to  have 
been  an  agent  in  effecting  the  policy  for  enemy  aliens.  It  was 
strongly  laid  down  that  such  an  action  would  not  lie,  and  having 
regard  to  things  said  in  the  course  of  the  decisions  I  have  just 
referred  to  it  is  not  surprising  that  this  should  have  been  so. 

On  the  other  hand,  in  Flindt  v.  Waters,  15  East,  260,  265, 
where  a  British  agent  had  effected  a  policy  of  insurance  on  be- 
half of  alien  enemies  who  were  not  so  at  the  time  of  the  loss  but 
had  become  so  before  action  brought,  Lord  Ellenborough  C.  J. 
laid  down  the  law  more  guardedly.  "The  defence,"  he  said, 
"of  alien  enemy  must  be  accommodated  to  the  nature  of  the 
transaction  out  of  which  it  arises :  it  may  go  to  the  contract  itself 
on  which  the  plaintiff  sues,  and  operate  as  a  perpetual  bar;  or 
the  objection  may,  as  in  a  case  of  this  sort,  be  merely  personal; 
in  respect  to  the  capacity  of  the  party  to  sue  upon  it.  Here  the 


\ 


RODRIGUEZ  v.  SPEYER  BROTHERS.  511 

objection  is  taken  upon  the  general  issue,  which  is  a  plea  of  a 
perpetual  bar,  and  if  found  against  the  plaintiff,  would  have 
excluded  him  for  ever:  so  that  though  peace  should  be  estab- 
lished to-morrow  between  the  two  countries,  and  the  Crown 
should  not  have  interfered  to  seize  the  debt,  yet  on  this,  plea  in 
bar  the  plaintiff  would  have  been  for  ever  estopped  to  sue  for 
his  debt.  But  here  the  objection  is  only  of  a  temporary  nature  : 
the  contract  itself  was  perfect  at  the  time  it  was  made  :  the  trade 
was  with  an  alien  friend."  As  the  cause  of  action  had  arisen 
before  the  assured  became  alien  enemies,  and  was  only  tem- 
porarily suspended,  the  Court  thought  that  the  supposed  rule 
was  not  one  which  applied  with  such  rigidity  as  to  create  a  per- 
petual bar,  and  on  the  plea  of  the  general  issue  it  was  therefore 
treated  as  not  applying. 

Ex  parte  Boussmaker,  13  Ves.  71,  is  a  case  in  which  an  anal- 
ogous view  was  taken  by  Lord  Erskine  L.  C.,  for  he  allowed  an 
enemy  alien  to  invoke  the  assistance  of  Chancery  by  a  petition 
to  prove  a  debt  under  a  commission  of  bankruptcy  because  the 
contract  under  which  the  debt  arose  had  been  entered  into  in 
time  of  peace,  and  the  title  to  the  debt  would  therefore  become 
enforceable  when  peace  came.  The  remedy  was  only  suspended, 
and  the  dividend  should  therefore  be  reserved.  In  Daubuz  v. 
Morshead,  6  Taunt.  332,  Gibbs  C.  J.  held  that  the  plaintiff,  al- 
though trustee  for  an  alien,  was  entitled  to  a  judgment  for 
money,  but  added  that  he  could  not  say  what  the  Crown  might 
not  do  to  lay  hands  on  the  money.  On  the  other  hand,  Lord 
Campbell  C.  J.  (Alcinous  v.  Nigreu,  4  E.  &  B.  217),  allowed  a 
plea  puis  darrein  continuance  that  the  plaintiff  had  become  an 
alien  enemy.  The  right  of  action  was  held  to  be  suspended  dur- 
ing the  war. 

My  Lords,  while  I  think  that  the  preponderance  of  authority 
down  to  this  date  has  tended  to  this  treatment  of  the  'rule  as  a 
rule  of  ordinary  law  and  not  as  a  mere  case  of  applying  policy, 
the  Courts  have  been,  as  I  have  shown,  by  no  means  unanimous, 
and  I  do  not  think  that  the  course  of  subsequent  decision  has 
materially  affected  this  conclusion.  The  careful  and  elaborate 
judgment  of  Lord  Reading  C.  J.  in  Porter  v.  Freudenberg, 
[1915]  1  K.  B.  857,  is  in  favour  of  the  view  that  the  rule  is  a 
rigid  one.  Candilis  &  Sons  v.  Victor  &  Co.,  33  Times  L.  R.  20, 
was  decided  in  the  same  sense.  On  the  other  hand,  in  Mercedes 
Daimler  Motor  Co.  v.  Maudslay  Motor  Co.,  31  Times  L.  R.  178, 
and  in  Rombach  v.  Gent,  31  Times  L.  R.  492,  Warrington  J.  and 


512  THE  RULE  OF  NON-INTERCOURSE. 

Lush  J.  respectively  appear  to  have  taken  the  other  view. 

My  Lords,  under  these  circumstances  I  am  of  opinion  that  it 
is  open  to  us,  as  a  supreme  tribunal  unfettered  by  any  decision 
of  its  own,  to  look  at  the  reason  of  the  rule  invoked.  If  we  can 
do  this  I  agree  with  the  majority  in  the  Court  of  Appeal  that  it 
is  premature  to  stop  the  action  at  this  stage  from  proceeding. 
And  I  think  that  if  this  be  so  the  balance  of  public  convenience 
is  in  favour  of  allowing  the  respondent  firm  to  get  in  this  debt 
if  on  the  merits  they  can.  Should  they  succeed  in  doing  so  I  am 
far  from  implying  that  any  share  of  it  should  be  paid  out  as 
part  of  the  assets  to  be  realised  in  taking  the  account  to  the 
enemy  partner.  But,  so  far  as  the  decision  of  the  Court  of  Ap- 
peal at  present  extends,  it  seems  to  me  to  have  been  right. 

Order    of    the    Court    of    Appeal    af- 
firmed, and  appeal  dismissed  with  costs. 

[Lord  Parmoor  delivered  an  opinion  concurring  with  Lord 
Finley  and  Lord  Haldane.  Lord  Sumner  delivered  an  exhaustive 
opinion,  in  which  Lord  Atkinson  concurred,  in  which  he  took 
the  ground  that  the  ancient  rule  by  which  an  enemy  plaintiff 
is  excluded  from  the  courts  is  so  well  established  that  it  can  be 
altered  only  by  legislation.] 


PORTER  v.  FREUDENBERG. 

COUBT  OF  APPEAL  OF  ENGLAND.     1915. 
Law  Reports  [1915]  1  K.  B.  857. 

[The  defendant,  a  German  subject  resident  in  Berlin,  main- 
tained a  business  establishment  in  London,  which  was  carried 
on  by  his  agent  Barnes  on  premises  leased  from  the  plaintiff. 
On  September  28,  1914,  Barnes  delivered  the  keys  of  the  prem- 
ises to  the  plaintiff  and  the  next  day  removed  the  whole  of  the 
defendant's  stock,  fixtures  and  fittings.  The  plaintiff  notified 
Barnes  that  the  premises  would  be  held  at  his  disposal  as  agent 
of  the  defendant,  and  then  brought  suit  for  a  quarter's  rent. 
The  trial  justice  gave  leave  to  issue  a  concurrent  writ,  and  to 
serve  notice  of  it  upon  the  defendant  at  Berlin.  As  such  service 
was  impracticable,  the  plaintiff  appealed  and  asked  for  leave 
for  substituted  service  of  notice  of  the  writ  upon  the  defendant's 
agent  in  England.] 


PORTER  v.  FREUDENBERG.  513 

LORD  READING,  C.  J.  .  .  .  Having  now  explained  the 
meaning  of  "alien  enemy"  for  civil  purposes,  and  having  de- 
cided that  such  alien  enemy's  right  to  sue  or  proceed  either  by 
himself  or  by  any  person  on  his  behalf  in  the  King's  Courts 
is  suspended  during  the  progress  of  hostilities  and  until  after 
peace  is  restored  .  .  .  the  next  point  to  consider  is  whether 
he  is  liable  to  be  sued  in  the  King's  Courts  during  the  war.  To 
allow  an  alien  enemy  to  sue  or  proceed  during  war  in  the  civil 
Courts  of  the  King  would  be,  as  we  have  seen,  to  give  to  the 
enemy  the  advantage  of  enforcing  his  rights  by  the  assistance 
of  the  King  with  whom  he  is  at  war.  But  to  allow  the  alien 
enemy  to  be  sued  or  proceeded  against  during  war  is  to  permit 
subjects  of  the  King  or  alien  friends  to  enforce  their  rights  with 
the  assistance  of  the  King  against  the  enemy.  Prima  facie  there 
seems  no  possible  reason  why  our  laws  should  decree  an  im- 
munity during  hostilities  to  the  alien  enemy  against  the  pay- 
ment of  just  debts  or  demands  due  to  British  or  neutral  subjects. 
The  rule  of  the  law  suspending  the  alien  enemy's  right  of  action 
is  based  upon  public  policy,  but  no  consideration  of  public  pol- 
icy is  apparent  which  would  justify  preventing  the  enforcement 
by  a  British  or  neutral  subject  of  a  right  against  the  enemy. 
As  was  said  by  Bailhache,  J.,  in  Robinson  &  Co.  v.  Continental 
Insurance  Co.  of  Mannheim,  [1915]  1  K.  B.  155,  159,  "To  hold 
that  a  subject's  right  of  suit  is  suspended  against  an  alien 
enemy  is  to  injure  a  British  subject  and  to  favour  an  alien 
enemy  and  to  defeat  the  object  and  reason  of  the  suspensory 
rule."  In  our  judgment  the  effect  would  be  to  convert  that 
which  during  war  is  a  disability,  imposed  upon  the  alien  enemy 
because  of  his  hostile  character,  into  a  relief  to  him  during  war 
from  the  discharge  of  his  liabilities  to  British  subjects.  It  is 
very  noteworthy  that  when  dealing  with  the  rights  of  alien 
enemies  there  is  no  shadow  of  doubt  suggested  in  the  books  as 
to  the  right  to  sue  alien  enemies.  More  often  there  is  no  men- 
tion of  it,  but  sometimes  it  is  the  subject  of  express  reference 
and  then  always  to  the  same  effect,  that  the  alien  enemy  can  be 
sued  during  the  progress  of  hostilities.  Bacon's  Abridgement, 
7th  ed.,  vol.  1,  p.  183,  asserts  this  liability  of  the  alien  enemy 
without  doubt  or  hesitation.  "The  plea  of  'alien  enemy'  is  a 
bar  to  a  bill  for  relief  in  equity  as  well  as  to  an  action  'at  law, 
but  it  would  seem  not  sustainable  to  a  mere  bill  for  discovery 
for  as  an  alien  enemy  may  be  sued  at  law  and  may  have  process 
to  compel  the  appearance  of  his  witnesses  so  he  may  have  the 


514  THE  RULE  OP  NON-INTERCOURSE. 

benefit  of  a  discovery."  This  is  an  important  passage  in  other 
respects  also,  and  in  our  judgment  it  is  a  correct  statement  of 
the  law.  .  .  . 

The  Supreme  Court  of  the  United  States  had  to  consider  the 
position  of  an  alien  enemy  defendant  in  McVeigh  v.  United 
States  (1871),  11  Wallace,  259.  The  United  States,  under  a 
statute  then  in  force,  filed  a  libel  of  information  in  the  District 
Court  of  Virginia  for  the  forfeiture  of  certain  real  and  personal 
property  of  McVeigh  on  the  ground  that  he  was  "a  resident  of 
the  City  of  Richmond  within  the  Confederate  lines  and  a  rebel. ' ' 
McVeigh  appeared  by  counsel  and  filed  a  claim  to  the  property 
and  an  answer.  The  Attorney  of  the  United  States  moved  that 
the  claim  and  answer  and  appearance  be  stricken  from  the  files, 
and  th6  Court  granted  the  motion  and  the  decree  was  made  for 
forefeiture  of  the  property.  The  case  eventually  was  brought  to 
the  Supreme  Court  on  writ  of  error.  Swayne,  J.,  in  delivering 
the  judgment  of  the  court,  said:  "The  order  in  effect  denied 
the  respondent  a  hearing.  It  was  alleged  he  was  in  the  position 
of  an  alien  enemy  and  hence  could  have  no  locus  standi  in  that 
forum.  If  assailed  there,  he  could  defend  there.  The  liability 
and  the  right  are  inseparable.  A  different  result  would  be  a 
blot  upon  our  jurisprudence  and  civilization.  .  .  .  Whether 
the  legal  status  of  the  plaintiff  in  error  was  or  was  not  that  of 
an  alien  enemy  is  a  point  not  necessary  to  consider;  because, 
apart  from  the  views  we  have  expressed,  conceding  the  fact  to  be 
so,  the  consequences  assumed  would  by  no  means  follow.  What- 
ever may  be  the  extent  of  the  disability  of  an  alien  enemy  to  sue 
in  the  Courts  of  the  hostile  country,  it  is  clear  that  he  is  liable 
to  be  sued,  and  this  carries  with  it  the  right  to  use  all  the  means 
and  appliances  of  defence."  The  learned  judge  relied  upon  the 
above  mentioned  passage  in  Bacon's  Abridgement  as  an  author- 
ity for  this  proposition,  and  the  Supreme  Court  acted  upon  it 
by  reversing  the  judgment  of  the  District  Court  and  the  Circuit 
Court.  .  .  . 

Once  the  conclusion  is  reached  that  the  alien  enemy  can  be 
sued,  it  follows  that  he  can  appear  and  be  heard  in  his  defence, 
and  may  take  all  such  steps  as  may  be  deemed  necessary  for  the 
proper  presentment  of  his  defence.  If  he  is  brought  at  the  suit 
of  a  party  before  a  Court  of  justice  he  must  have  the  right  of 
submitting  his  answer  to  the  Court.  To  deny  him  that  right 
would  be  to  deny  him  justice  and  would  be  quite  contrary  to 
the  basic  principles  guiding  the  Kings 's  Courts  in  the  adminis- 
tration of  justice. 


PORTER  v.  FREUDENBERG.  515 

Equally  it  seems  to  result  that,  when  sued,  if  judgment  pro- 
ceeded against  him,  the  appellate  Courts  are  as  much  open  to 
him  as  to  any  other  defendant.  It  is  true  that  he  is  the  person 
who  may  be  said  in  one  sense  to  initiate  the  proceedings  in  the 
appellate  Court  by  giving  the  notice  of  appeal,  which  is  the  first 
necessary  step  to  bring  the  case  before  that  Court;  but  he  is 
entitled  to  have  his  case  decided  according  to  law,  and  if  the 
judge  in  one  of  the  King's  Courts  has  erroneously  adjudicated 
upon  it  he  is  entitled  to  have  recourse  to  another  and  an  appel- 
late Court  to  have  the  error  rectified.  Once  he  is  cited  to  appear 
he  is  entitled  to  the  same  opportunities  of  challeging  the  cor- 
rectness of  the  decision  of  the  judge  of  first  instance  or  other 
tribunal  as  any  other  defendant.  The  decision  in  McVeigh  v. 
United  States  (1871),  11  Wallace,  259,  in  the  Supreme  Court  of 
the  United  States  is  to  the  same  effect.  In  that  case  the  defend- 
ant, who  was  appellant  in  the  circumstances  already  stated, 
brought  writ  of  error  in  respect  of  the  judgment  of  the  District 
and  Circuit  Courts  and  succeeded  in  reversing  the  judgments  of 
those  Courts. 

We  must  now  consider  whether  the  same  conclusion  is  reached 
in  reference  to  appeals  by  an  alien  enemy  plaintiff,  that  is,  a 
person  who  before  the  outbreak  of  war  was  a  plaintiff  in  a  suit 
and  then  by  virtue  of  his  residence  or  place  of  business  became 
an  alien  enemy.  As  we  have  seen,  he  could  not  proceed  with 
his  action  during  the  war.  If  judgment  had  been  pronounced 
against  him  before  the  war  in  an  action  in  which  he  was  plain- 
tiff, can  he  present  an  appeal  to  the  appellate  Courts  of  the 
King?  We  cannot  see  any  distinction  in  principle  between  the 
case  of  an  alien  enemy  seeking  the  assistance  of  the  King  to 
enforce  a  civil  right  in  a  Court  of  first  instance  and  an  alien 
enemy  seeking  to  enforce  such  right  by  recourse  to  the  appellate 
Courts.  He  is  the  "actor"  throughout.  He  is  not  brought  to 
the  Court  at  the  suit  of  another,  it  is  he  who  invokes  their  as- 
sistance; and  it  matters  not  for  this  purpose  that  a  judgment 
has  been  pronounced  against  him  before  the  war.  When  once 
hostilities  have  commenced  he  cannot,  so  long  as  they  continue, 
be  heard  in  any  suit  or  proceeding  in  which  he  is  the  person 
first  setting  the  Courts  in  motion.  If  he  had  given  notice  of 
appeal  before  the  war,  the  hearing  of  his  appeal  must  be  sus- 
pended until  after  the  restoration  of  peace,  ,  .  , 


516  THE  RULE  OF  NON-INTERCOURSE. 

ALFRED  HUGO  POSSELT  ET  AL.  v.  R.   SEABURY 
D'ESPARD  ET  AL. 

COUET  OF  CHANCERY  OF  NEW  JEBSEY.    1917. 
87  N.  J.  Eq.  571. 

On  bill.    On  order  to  show  cause.    .    .    . 

« 

LANE,  V.  C.  A  preliminary  objection  is  made  to  the  prosecu- 
tion of  the  cause  upon  the  ground  that  the  complainants  are 
alien  enemies.  The  facts  are  conceded.  The  individual  com- 
plainant is  a  subject  of  Germany,  resident  in  this  country,  and 
has  taken  out  his  first  papers.  The  corporation  complainant  is 
a  subject  of,  and  resident  in,  Germany.  The  bill  is  for  the 
preservation  of  the  rights  of  the  complainants  as  stockholders 
in  a  New  Jersey  corporation  and  also  in  the  interest  of  the  New 
Jersey  corporation  for  the  protection  of  its  rights  against  the 
action  of  the  defendants.  The  German  corporation  is  a  majority 
stock  holder,  practically  the  owner,  of  the  New  Jersey  corpora- 
tion. The  charge  is  that  the  defendants  have  deliberately  set 
about  to  wreck  the  New  Jersey  corporation.  No  money  decree 
is  prayed  for.  If  I  should  deny  relief  upon  the  ground  stated 
by  the  defendants,  then  the  property  of  alien  enemies  within 
this  country,  acquired  in  time  of  peace,  may  be  ruthlessly  taken 
away  from  them,  not  by  the  government,  but  by  individuals,  sub- 
ject only  to  the  restraint  of  criminal  law.  I  am  familiar,  of 
course,  with  the  very  many  learned  opinions  of  publicists  of  other 
days,  and  also  with  the  opinions  of  the  supreme  court  of  the 
United  States,  but  I  think  that  at  this  time  to  attempt  to  con- 
sider them  in  detail  would  unduly  extend  this  opinion,  and  in 
the  view  that  I  take  of  the  present  situation,  would  be  wholly 
unwarranted.  The  right  of  government  to  confiscate  property 
of  alien  enemies  and  close  the  doors  of  its  courts  to  them, 
whether  resident  here  or  elsewhere,  may  be  conceded.  Whether 
that  right  is  to  be  exercised  is  a  matter  of  policy.  The  modern 
trend  is  to  discourage  interference  with  property  rights,  whether 
of  friends  or  enemies  in  time  of  war,  except  so  far  as  may  be 
necessary  to  effectively  accomplish  the  objects  of  the  war.  The 
solution  of  the  problem  now  before  me,  I  think,  is  found  in  the 
president's  message  to  Congress,  which,  in  view  of  the  nature 
of  its  reception  by  Congress  and  the  action  of  Congress  under 
it,  has  become  the  voice  of  the  country;  and  the  president's 


POSSELT  v.  D'ESPARD.  517 

proclamation  declaring  a  state  of  war  and  defining  rights  of 
residents,  an  official  act  under  authority  of  Congress.  German 
residents  who  comply  with  needful  regulations,  and  who  prop- 
erly conduct  themselves,  are  assured  that  they  will  be  undis- 
turbed in  the  peaceful  pursuit  of  their  lives  and  occupations 
and  be  accorded  the  consideration  due  to  all  peaceful  and  law- 
abiding  persons,  except  so  far  as  restrictions  may  be  necessary 
for  their  own  protection  and  for  the  safety  of  the  United  States. 
To  shut  the  door  of  the  court  in  the  face  of  an  alien  enemy  res- 
ident here  would  be  a  distinct  violation  of  not  only  the  spirit 
but  the  letter  of  this  proclamation. 

With  respect  to  the  alien  enemy  resident  in  Germany  the  sit- 
uation is  somewhat  different,  but  I  think  not  essentially  so.  The 
president  has  very  carefully  distinguished  between  the  German 
government  and  the  German  people,  and  the  sins  of  that  gov- 
ernment ought  not  to  be  visited  upon  the  people  except  so  far 
as  the  legitimate  interests  of  the  United  States  require.  I  am 
convinced  that  there  is  no  interest  of  the  United  States  which 
requires  the  court,  in  advance  of  a  definite  command  by  the  con- 
stituted authorities,  to  refuse  to  protect,  at  their  instance,  the 
rights  of  alien  enemies  resident  abroad  in  property  in  this  coun- 
try. If  it  be  said  that  this  is  in  conflict  with  certain  prior  de- 
cisions, the  answer  is  that  the  solution  of  the  question  depends 
upon  public  policy,  and  while  it  is  not  the  function  of  the  court 
to  establish  a  public  policy,  it  is  the  function  and  the  duty  of 
the  court  to  determine,  as  a  matter  of  fact,  what  the  policy 
actually  is,  and  it  is  the  policy  of  the  present  day,  not  that  of 
some  years  ago,  that  must  be  determined.  Tolerance  is  the  key- 
note of  the  president's  proclamation,  and  by  that  I  am  bound. 
If  the  contention  is  made  that  to  permit  alien  enemies  resident 
abroad  to  sue  in  our  courts  would  be  to  lend  aid  and  comfort 
to  the  enemy,  I  think  the  answer  is  that  either  the  court  or  the 
government  may  so  act  as  to  prevent  any  property  coming  into 
possession  of  the  enemy.  I  am  unwilling  to  concede  that  either 
the  government  or  the  courts  are  powerless  to  prevent  aid  and 
comfort  being  given  to  the  enemy  without  exercising  the  drastic 
power  of  refusing  absolutely  at  the  instance  of  an  alien  enemy 
to  protect  property  rights  within  this  country.  I  think  the 
doors  of  the  court  are  still  open  to  all  persons  who  properly  be- 
have themselves. 

The  result  is  that  the  motion  to  stay  the  prosecution  of  this 
cause  on  the  ground  of  alien  enemy  will  be  denied. 


518  THE  RULE  OF  NON-INTERCOURSE. 

NOTE. — There  is  no  rule  of  International  law  as  to  the  rights  and 
privileges  accorded  to  an  alien  enemy  in  the  tribunal  of  a  belligerent. 
This  is  purely  a  question  of  municipal  law  and  is  to  be  determined 
by  each  country  in  accordance  with  its  own  views  as  to  the  require- 
ment of  national  policy.  In  England  it  has  apparently  always  been 
the  rule  that  the  courts  were' closed  to  an  alien  enemy  abiding  in  his 
own  country,  but  as  early  as  1454  it  was  held  that  if  an  alien  enemy 
came  into  England  under  license  and  safe  conduct  he  could  main- 
tain an  action  against  any  one  who  broke  into  his  house  and  took 
away  his  goods,  32  Y.  B.  Henry  VI,  fol.  23,  b  5,  cited  by  Hyde,  II, 
216.  Likewise  in  Wells  v.  Williams  (1697),  1  Lord  Raymond,  282, 
the  court  said: 

If  an  alien  enemy  comes  hither  sub  salvo  conductu,  he  may 
maintain  an  action;  if  an  alien  enemy  come  hither  in  time 
of  peace,  per  licentiam  domini  regis  as  the  French  Protestants 
did,  and  lives  here  sub  protectione,  and  a  war  afterwards  be- 
gins between  the  two  nations,  he  may  maintain  an  action; 
for  suing  is  but  a  consequential  right  of  protection;  and 
therefore  an  alien  enemy  that  is  here  in  peace  under  protec- 
tion, may  sue  a  bond;  aliter  of  one  commorant  in  his  own 
country. 

A  century  later,  Lord  Stowell  in  The  Hoop  (1799),  1  C.  Robinson, 
196,  declared: 

In  the  law  of  almost  every  country,  the  character  of  alien 
enemy  carries  with  it  a  disability  to  sue,  or  to  sustain  in  the 
language  of  the  civilians  a  persona  standi  in  judicio.  The 
peculiar  law  of  our  own  country  applies  this  principle  with 
great  rigour. 

He  indicated  however  that  there  might  be  circumstances  which 
would  relieve  the  alien  of  his  enemy  character,  "such  as  his  coming 
under  a  flag  of  truce,  a  cartel,  a  pass,  or  some  other  act  of  public 
authority  that  puts  him  in  the  King's  peace  pro  hac  vice".  Shortly 
afterward  Chancellor  Kent  gave  emphatic  utterance  to  the  govern- 
ing principle  when  he  said  in  Clarke  v.  Mor.ey  (1813),  10  Johnson 
(N.  Y.),  69: 

A  lawful  residence  implies  protection  and  a  capacity  to  sue 
and  be  sued.  A  contrary  doctrine  would  be  repugnant  to 
sound  policy  no  less  than  to  justice  and  humanity. 

The  English  courts,  however,  did  not  adopt  Kent's  view  that  if 
an  alien  was  lawfully  residing  in  the  kingdom  he  had  capacity  to  sue. 
This  was  denied  in  Alciator  v.  Smith  (1812),  3  Campbell,  245,  and 
in  Alcinous  v.  Nigreu  (1854),  4  E.  &  B.  217.  But  the  effect  of  these 
decisions  has  been  largely  nullified  by  the  recent  cases  in  which  it 
has  been  held  that  registration  according  to  law  carries  with  it  the 
protection  of  the  government,  Princess  of  Thurn  und  Taxis  v.  Moffitt 
(1914),  L.  R.  [1915]  1  Ch.  58,  and  is  evidence  of  license  to  remain, 
Porter  v,  Freudenberg  (1915),  L.  R,  [1915]  1  K,  B,  857.  The 


NOTE.  519 

same  rule  has  been  applied  in  Scotland,  Schulze,  Gow  &  Co.  v. 
Bank  of  Scotland  (1914),  2  S.  L.  T.  455;  in  Ireland,  Vokl  v.  Govern- 
ors of  Rotunda  Hospital  (1914),  L.  R.  [1914]  2  I.  R.  543;  in  Quebec, 
Viola  v.  MacKenzie,  Mann  &  Co.  (1915),  24  Que.  K.  B.  31;  in  Mani- 
toba, Peskovitch  v.  Western  Canada  Flour  Mills  Co.  Ltd.  (1914),  24 
Manitoba,  763;  in  South  Africa,  Stern  &  Co.  v.  De  Waal  (1915),  So. 
Af.  L.  R.  [1915]  Transvaal,  60;  and  apparently  in  India,  Husseine  v. 
Weichers  (1914),  7  Sind  Law  Rep.  329.  For  a  good  discussion  of  the 
early  cases  see  the  opinion  of  Justice  Story  in  Society  for  the  Propaga- 
tion of  the  Gospel  v.  Wheeler  (1814),  2  Gallison,  105. 

The  rule  laid  down  by  Chancellor  Kent  in  Clarke  v.  Morey  (1813), 
10  Johnson  (N.  Y.),  69,  has  generally  been  followed  in  the  United 
States.  A  suit  brought  before  the  outbreak  of  war  by  alien  enemies 
resident  in  Germany  but  which  was  pending  when  hostilities  began 
was  not  dismissed  but  proceedings  were  suspended  until  the  return 
of  peace,  Plettenburg,  Holthaus  &  Co.  v.  Kalmon  (1917),  241  Fed. 
605.  The  libel  brought  against  a  ship  by  an  alien  enemy  for  wages 
was  not  dismissed,  but  was  continued  until  the  end  of  the  war,  The 
Oropa  (1919),  255  Fed.  132.  See  also  Stumpf  v.  Schreiber  Brewing 
Co.  (1917),  242  Fed.  80;  Speidel  v.  N.  Barstow  Co.  (1917),  243  Fed. 
621;  Estate  of  Henrichs  (1919),  180  Cal.  175;  Heiler  v.  Goodman's 
Motor  Express  Van  and  Storage  Co.  (1918),  92  N.  J.  Law,  415. 

In  Birge-Forbes  Company  v.  Heye  (1920),  251  U.  S.  317,  323,  Mr. 
Justice  Holmes  said: 

The  plaintiff  had  got  his  judgment  before  war  was  declared, 
and  the  defendant,  the  petitioner,  had  delayed  the  collection 
of  it  by  taking  the  case  up.  Such  a  case  was  disposed  of  with- 
out discussion  by  Chief  Justice  Marshall  speaking  for  the 
Court  in  Owens  v.  Hannay,  9  Cranch,  180.  Kershaw  v.  Kelsey, 
100  Massachusetts,  561,  564.  There  is  nothing  "mysteriously 
noxious".  (Coolidge  v.  Ingles,  13  Massachusetts,  26,  37)  in  a 
judgment  for  an  alien  enemy.  Objection  to  it  in  these  days 
goes  only  so  far  as  it  would  give  aid  and  comfort  to  the  other 
side.  Hanger  v.  Abbott,  6  Wall.  532,  536.  M'Connell  v.  Hector, 
3  B.  &  P.  113,  114.  Such  aid  and  comfort  were  prevented  by 
the  provision  that  the  sum  recovered  should  be  paid  over  to 
the  Alien  Property  Custodian,  and  the  judgment  in  this  re- 
spect was  correct.  When  the  alien  enemy  is  defendant  justice 
to  him  may  require  the  suspension  of  the  case.  Watts,  Watts 
&  Co.  v.  Unione  Austriaca  di  Navigazione,  248  U.  S.  9,  22. 

The  exclusion  of  an  enemy  claimant  from  appearance  before  a 
prize  court  in  proceedings  in  which  his  property  rights  are  being 
adjudicated  seems  to  be  confined  to  Anglo-American  jurisdictions, 
Nys,  Le  Droit  International,  III,  150,  and  has  met  with  much  criti- 
cism. In  The  Gutenfels  (Egypt,  1915),  1  Br.  &  Col.  P.  C.  102,  an 
indignant  judge  said: 

The  fact  is  that  the  rule  is  a  bad  rule,  much  more  to  be 
honoured  in  the  breach  than  in  the  observance;  and  if  we 


520  THE  RULE  OF  NON-INTERCOURSE. 

must  acknowledge  ourselves  to  be  so  far  fettered  by  the  dead 
hand  of  outworn  precedent  as  to  recognize  its  continued  ex- 
istence, I  am,  at  any  rate,  determined  to  permit  all  such 
breaches  of  it  as  my  sense  of  equity  and  fair  dealing  towards 
the  enemy  may  demand. 

In  The  Mowe  (1914),  L.  R.  [1915]  P.  1,  Sir  Samuel  Evans  declared 
that  whether  an  enemy  claimant  should  be  allowed  to  appear  was 
purely  a  question  of  practice,  and  in  ordering  that  any  enemy  claim- 
ant who  conceives  that  he  is  entitled  to  any  privilege  or  relief  under 
any  Hague  Convention  should  be  allowed  to  appear  and  present  his 
claim,  his  Lordship  used  these  words: 

Practice  should  conform  to  sound  ideas  of  what  is  fair  and 
just.  When  a  sea  of  passions  rises  alid  rages  as  a  natural  re- 
sult of  such  a  calamitous  series  of  wars  as  the  present,  it  be- 
hooves a  Court  of  justice  to  preserve  a  calm  and  equable 
attitude  in  all  controversies  which  come  before  i.t  for  decision, 
not  only  where  they  concern  neutrals,  but  also  where  they 
may  affect  enemy  subjects.  In  times  of  peace  the  Admiralty 
Courts  of  this  realm  are  appealed  to  by  people  of  all  nation- 
alities who  engage  in  commerce  upon  the  sea,  with  a  confid- 
ence that  right  will  be  done.  So  in  the  unhappy  and  dire 
times  of  war  the  Court  of  Prize  as  a  Court  of  justice  will,  it 
is  hoped,  show  that  it  holds  evenly  the  scales  between  friend, 
neutral,  and  foe. 

It  is  not  doubted  that  alien  enemies  may  be  sued.  Some  jurists 
however  have  argued  that  such  suits  would  be  unjust  to  the  enemy 
since  he  could  not  be  allowed  for  reasons  of  public  policy  to  make  an 
adequate  defense.  This  consideration  has  either  been  ignored  or  has 
been  met  by  a  suspension  of  proceedings  until  the  return  of  peace. 
In  the  older  cases  the  point  of  view  of  the  court  has  been  like  that 
expressed  in  Hastings  v.  Blake  (1596),  Noy,  1,  where  it  was  said: 

Men  attaint  or  outlawed  shall  be  put  to  answer  in  any  ac- 
tion against  them,  because  it  is  to  their  prejudice.  But  in  an 
action  brought  by  them  they  shall  not  be  answered,  because  it 
is  to  their  benefit. 

For  further  discussion  of  suits  against  alien  enemies  see  Hall  v. 
Trussell  (1603),  Moore,  753;  Ramdsen  v.  Macdonald  (1748),  1  Wilson, 
217;  Daubigny  v.  Davallon  (1794),  2  Anstruther,  462;  Ex  parte  Bouss- 
maker  (1806),  13  Vesey,  71;  Albrecht  v.  Sussman  (1813),  2  V.  &  B. 
323;  Barrick  v.  Buba  (1857),  2  C.  B.  (N.  S.)  563;  Dorsey  v.  Kyle 
(1869),  30  Maryland,  512;  McVeigh  v.  United  States  (1870),  11  Wal- 
lace, 259;  Masterson  v.  Howard  (1873),  18  Wallace,  99;  De  Jarnette 
v.  De  Giverville  (1874),  56  Missouri,  440;  Ex  parte  Savage  (1914). 
South  Africa  L.  R.  [1914],  C.  P.  D.  Part  I,  827;  Robinson  &  Co.  v. 
Continental  Insurance  Co.  of  Mannheim  (1914)  L.  R.  [1915]  1  K.  B. 
155;  Halsey  v.  Lowenfeld  (1915),  L.  R.  [1916]  1  K.  B.  143;  In  re 


NOTE.  521 

Stahlwerk  Becker  Aktiengesellschaft's  Patent  (1917),  L.  R.  [1917]  2 
Ch.  272.  IV  ^N 

In  accord  with  Hanger  v.  Abbott  (1868),  6  Wallace,  532  ^as  to  the 
effect  of  war  on  the  Statute  of  Limitations  are  Hoare  v.  Allen  (1789), 
2  Dallas  (Penn.),  102;  United  States  v.  Wiley  (1871),  11  Wallace, 
508;  The  Protector  (1872),  12  Ib.,  700;  Semmes  v.  Hartford  Insur- 
*  ance  Co.  (1872),  13  Ib.  158;  Brown  v.  Hiatts  (1873),  15  Ib.  177. 
Whether  Hanger  v.  Abbott  would  be  followed  in  Great  Britain  is 
doubtful.  Westlake  (II,  49),  Pollock  (Contracts,  86),  and  Phillipson 
(Effect  of  War  on  Contracts,  76)  support  it,  but  there  is  a  dictum  to 
the  contrary  in  De  Wahl  v.  Braune  (1856),  1  H.  &  N.  178,  which  is 
adopted  by  Anson  (Contracts,  129)  and  Lord  Lindley  (Company  Law, 
I,  53).  Parliament  however  has  recognized  the  principle  involved,  and 
in  6  &  7  Geo.  v.  ch.  18,  sec.  3  it  is  provided  that  where  a  person  is 
prevented  from  building  on  a  site  because  of  circumstances  of  the  war 
or  by  public  authority,  the  courts,  if  there  is  danger  that  adjacent 
owners  may  acquire  a  right  to  light  by  prescription,  may  suspend  the 
running  of  the  period  of  prescription,  and  such  period  of  suspension 
is  excluded  in  computing  the  period  required  for  the  acquisition  of 
a  right  to  light  by  prescription.  See  In  re  City  of  London  Real  Prop- 
erty Co.,  Lt.,  [1917]  W.  N.  183. 

Analogous  to  the  effect  of  war  on  the  running  of  the  Statute  of 
Limitations  is  the  effect  of  war  on  the  running  of  interest  on  debts 
during  the  period  in  which  the  debtor  and  creditor,  subjects  of  enemy 
states,  are  forbidden  to  have  intercourse,  and  hence  the  payment  of 
interest  from  one  to  the  other  is  unlawful.  Authority  is  divided, 
but  seems  to  favor  the  rule  that  interest  does  not  run  when  the 
debtor  and  creditor  are  separated  by  the  line  of  war.  See  Du  Belloix 
v.  Lord  Waterpark  (1822),  1  Bowling  and  Ryland,  16;  Brown  v. 
Hiatts  (1873),  15  Wallace,  177;  Padgett  v.  Chothia  (1916),  18  Bombay 
L.  R.  190;  In  re  Fried  Krupp  Actien-Gesellschaft  (1917),  L.  R.  [1917] 
2  Ch.  188.  The  subject  is  fully  treated  by  C.  N.  Gregory,  "Interest 
on  Debts  where  Intercourse  between  Debtor  and  Creditor  is  for- 
bidden by  a  State  of  War,"  Law  Quar.  Rev.,  XXV,  297. 

On  the  effect  of  war  on  judicial  remedies  see  a  note  by  E.  M. 
Borchard  in  Yale  Law  Journal,  XXVII,  104;  notes  in  Harvard  Law 
Review,  XXXI,  470,  XXXII,  737;  Pellizi,  "Les  Sujets  Enneiuis  devunt 
les  Tribunaux  en  Itale,"  Clunet,  XLVI,  80,  659;  McNair.  Essays  and 
Lectures  upon  Some  Legal  Effects  of  War;  Page,  War  and  Alien  En- 
emies;  Baty  and  Morgan,  War:  its  Conduct  and  Legal  Results;  Garner, 
International  Law  and  the  World  War;  Hyde,  II,  216;  Moore,  Digest, 
VII,  244. 


CHAPTER  XIV. 
WAR  RIGHTS  AS  TO  PRIVATE  PROPERTY. 

SECTION  1.    PRIVATE  PROPERTY  ON  LAND. 
ARMITZ  BROWN  v.  THE  UNITED  STATES. 

SUPREME  COUBT  OF  THE  UNITED  STATES.    1814. 
8  Cranch,  110. 

[The  Emulous,  owned  by  citizens  of  the  United  States,  was 
chartered  to  a  British  company  to  carry  a  cargo  from  Savannah, 
Georgia,  to  Plymouth,  England.  Having  been  detained  in  port 
by  the  embargo  of  April  4,  1812,  the  vessel  proceeded  to  New 
Bedford,  Massachusetts.  War  was  declared  in  June,  1812,  and 
some  months  later  the  cargo  was  unloaded,  and  in  November, 
1812,  part  of  it  was  sold  to  the  claimant,  who  was  an  American 
citizen.  In  April,  1813,  the  attorney  of  the  United  States,  ap- 
parently on  his  own  motion,  seized  and  libeled  that  part  of  the 
cargo  which  had  been  sold  to  the  claimant.  The  District  Court 
dismissed  the  libel,  but  the  Circuit  Court,  Justice  Story  pre- 
siding, reversed  the  sentence,  and  the  claimant  appealed.] 

MARSHALL,  Ch.  J.,  delivered  the  opinion  of  the  Court.    .    .    . 

The  material  question  made  at  bar  is  this.  Can  the  pine  tim- 
ber, even  admitting  the  property  not  to  be  changed  by  the  sale 
in  November,  be  condemned  as  prize  of  war? 

The  cargo  of  the  Emulous  having  been  legally  acquired  and 
put  on  board  the  vessel,  having  been  detained  by  an  embargo 
not  intended  to  act  on  foreign  property,  the  vessel  having  sailed 
before  the  war,  from  Savannah,  under  a  stipulation  to  re-land 
the  cargo  in  some  port  of  the  United  States,  the  re-loading  hav- 
ing been  made  with  respect  to  the  residue  of  the  cargo,  and  the 
pine  timber  having  been  floated  into  shallow  water,  where  it 
was  secured  and  in  the  custody  of  the  owner  of  the  ship,  an 
American  citizen,  the  Court  cannot  perceive  any  solid  distinc- 

522 


ARMITZ  BROWN  v.  UNITED  STATES.  523 

tion,  so  far  as  respects  confiscation,  between  this  property  and 
other  British  property  found  on  land  at  the  commencement  of 
hostilities.  It  will  therefore  be  considered  as  a  question  relating 
to  such  property  generally,  and  to  be  governed  by  the  same  rule. 

Respecting  the  power  of  government  no  doubt  is  entertained. 
That  war  gives  to  the  sovereign  full  right  to  take  the  persons 
and  confiscate  the  property  of  the  enemy  wherever  found,  is 
conceded.  The  mitigations  of  this  rigid  rule,  which  the  humane 
and  wise  policy  of  modern  times  has  introduced  into  practice, 
will  more  or  less  affect  the  exercise  of  this  right,  but  cannot  im- 
pair the  right  itself.  That  remains  undiminished,  and  when  the 
sovereign  authority  shall  choose  to  bring  it  into  operation,  the 
judicial  department  must  give  effect  to  its  will.  But  until  that 
will  shall  be  expressed,  no  power  of  condemnation  can  exist  in 
the  Court. 

The  questions  to  be  decided  by  the  Court  are : 

1st.  May  enemy's  property,  found  on  land  at  the  commence- 
ment of  hostilities,  be  seized  and  condemned  as  a  necessary  con- 
sequence of  the  declaration  of  war? 

2d.  Is  there  any  legislative  act  which  authorizes  such  seizure 
and  condemnation? 

Since,  in  this  country,  from  the  structure  of  our  government, 
proceedings  to  condemn  the  property  of  an  enemy  found  within 
our  territory,  at  the  declaration  of  war,  can  be  sustained  only 
upon  the  principle  that  they  are  instituted  in  execution  of  some 
existing  law,  we  are  led  to  ask, 

Is  the  declaration  of  war  such  a  law?  Does  that  declaration, 
by  its  own  operation,  so  vest  the  property  of  the  enemy  in  the 
government,  as  to  support  proceedings  for  its  seizure  and  con- 
fiscation, or  does  it  vest  only  a  right, -the  assertion  of  which  de- 
pends on  the  will  of  the  sovereign  power  ? 

The  universal  practice  of  forbearing  to  seize  and  confiscate 
debts  and  credits,  the  principle  universally  received,  that  the 
right  to  them  revives  on  the  restoration  of  peace,  would  seem  to 
prove  that  war  is  not  an  absolute  confiscation  of  this  property, 
but  simply  confers  the  right  of  confiscation. 

Between  debts  contracted  under  the  faith  of  laws,  and  prop- 
erty acquired  in  the  course  of  trade,  on  the  faith  of  the  same 
laws,  reason  draws  no  distinction;  and,  although,  in  practice, 
vessels  with  their  cargoes,  found  in  port  at  the  declaration  of 
war,  may  have  been  seized,  it  is  not  believed  that  modern  usage 
would  sanction  the  seizure  of  the  goods  of  an  enemy  on  land, 


524      WAR  RIGHTS  AS  TO  PRIVATE  PROPERTY. 

which  were  acquired  in  peace  in  the  course  of  trade.  Such  a 
proceeding  is  rare,  and  would  be  deemed  a  harsh  exercise  of  the 
right  of  war.  But  although  the  practice  in  this  respect  may  not 
be  uniform,  that  circumstance  does  not  essentially  affect  the 
question.  The  enquiry  is,  whether  such  property  vests  in  the 
sovereign  by  the  mere  declaration  of  war,  or  remains  subject  to 
a  right  of  confiscation,  the  exercise  of  which  depends  on  the 
national  will:  and  the  rule  which  applies  to  one  case,  so  far  as 
respects  the  operation  of  a  declaration  of  war  on  the  thing  it- 
self, must  apply  to  all  others  over  which  war  gives  an  equal 
right.  The  right  of  the  sovereign  to  confiscate  debts  being  pre- 
cisely the  same  with  the  right  to  confiscate  other  property  found 
in  the  country,  the  operation  of  a  declaration  of  war  on  debts 
and  other  property  found  in  the  country  must  be  the  same. 
What  then  is  this  operation? 

Even  Bynkershoek,  who  maintains  the  broad  principle,  that 
in  war  everything  done  against  an  enemy  is  lawful ;  that  he  may 
be  destroyed,  though  unarmed  and  defenceless;  that  fraud,  or 
even  poison,  may  be  employed  against  him;  that  a  most  un 
limited  right  is  acquired  to  his  person  and  property;  admits 
that  war  does  not  transfer  to  the  sovereign  a  debt  due  to  his 
enemy;  and,  therefore,  if  payment  of  such  debt  be  not  exacted, 
peace  revives  the  former  right  of  the  creditor;  "because,"  he 
says,  "the  occupation  which  is  had  by  war  consists  more  in  fact 
than  in  law."  He  adds  to  his  observations  on  this  subject,  "let 
it  not,  however,  be  supposed  that  it  is  only  true  of  actions,  that 
they  are  not  condemned  ipso  jure,  for  other  things  also  belong- 
ing to  the  enemy,  may  be  concealed  and  escape  condemnation." 

Vattel  says,  that  "the  sovereign  can  neither  detain  the  per- 
sons nor  the  property  of  those  subjects  of  the  enemy  who  are 
within  his  dominions  at  the  time  of  the  declaration. ' ' 

It  is  true  that  this  rule  is,  in  terms,  applied  by  Vattel  to  the 
property  of  those  only  who  are  personally  within  the  territory 
at  the  commencement  of  hostilities;  but  it  applies  equally  to 
things  in  action  and  to  things  in  possession;  and  if  war  did,  of 
itself,  without  any  further  exercise  of  the  sovereign  will,  vest 
the  property  of  the  enemy  in  the  sovereign,  his  presence  could 
not  exempt  it  from  this  operation  of  war.  Nor  can  a  reason  be 
perceived  for  maintaining  that  the  public  faith  is  more  entirely 
pledged  for  the  security  of  property  trusted  in  the  territory  of 
the  nation  in  time  of  peace,  if  it  be  accompanied  by  its  owner, 
than  if  it  be  confided  to  the  care  of  others 


ARMITZ  BROWN  v.  UNITED  STATES.  525 

Chitty,  after  stating  the  general  right  of  seizure,  says,  "But. 
in  strict  justice,  that  right  can  take  effect  only  on  those  posses- 
sions of  a  belligerent  which  have  come  to  the  hands  of  his  ad- 
versary after  the  declaration  of  hostilities. ' ' 

The  modern  rule  then  would  seem  to  be,  that  tangible  prop- 
erty belonging  to  an  enemy  and  found  in  the  country  at  the 
commencement  of  war,  ought  not  to  be  immediately  confiscated ; 
and  in  almost  every  commercial  treaty  an  article  is  inserted  stip- 
ulating for  the  right  to  withdraw  such  property. 

This  rule  appears  to  be  totally  incompatible  with*  the  idea, 
that  war  does  of  itself  vest  the  property  in  the  belligerent  gov- 
ernment. It  may  be  considered  as  the  opinion  of  all  who  have 
written  on  the  jus  belli,  that  war  gives  the  right  to  confiscate, 
but  does  not  itself  confiscate  the  property  of  the  enemy;  and 
their  rules  go  to  the  exercise  of  this-  right. 

The  constitution  of  the  United  States  was  framed  at  a  time 
when  this  rule,  introduced  by  commerce  in  favor  of  moderation 
and  humanity,  was  received  throughout  the  civilized  world.  In 
expounding  that  constitution,  a  construction  ought  not  lightly 
to  be  admitted  which  would  give  to  a  declaration  of  war  an 
effect  in  this  country  it  does  not  possess  elsewhere,  and  which 
would  fetter  that  exercise  of  entire  discretion  respecting  enemy 
property,  which  may  enable  the  government  to  apply  to  the 
enemy  the  rule  that  he  applies  to  us.  ... 

One  view,  however,  has  been  taken  of  this  subject  which  de- 
serves to  be  further  considered. 

It  is  urged  that,  in  executing  the  laws  of  war,  the  executive 
may  seize  and  the  Courts  condemn  all  property  which,  accord- 
ing to  the  modern  law  of  nations,  is  subject  to  confiscation,  al- 
though it  might  require  an  act  of  the  legislature  to  justify  the 
condemnation  of  that  property  which,  according  to  modern 
usage,  ought  not  to  be  confiscated. 

This  argument  must  assume  for  its  basis  the  position  that 
modern  usage  constitutes  a  rule  which  acts  directly  upon  the 
thing  itself  by  its  own  force,  and  not  through  the  sovereign 
power.  This  position  is  not  allowed.  This  usage  is  a  guide 
which  the  sovereign  follows  or  abandons  at  his  will.  The  rule, 
like  other  precepts  of  morality,  of  humanity,  and  even  of  wis- 
dom, is  addressed  to  the  judgment  of  the  sovereign;  and  al- 
though it  cannot  be  disregarded  by  him  without  obloquy,  yet  it 
may  be  disregarded. 

The  rule  is,  in  its  nature,  flexible.     It  is  subject  to  infinite 


526      WAR  RIGHTS  AS  TO  PRIVATE  PROPERTY. 

modification.  It  is  not  an  immutable  rule  of  law,  but  depends 
on  political  considerations  which  may  continually  vary. 

Commercial  nations,  in  the  situation  of  the  United  States, 
have  always  a  considerable  quantity  of  property  in  the  posses- 
sion of  their  neighbors.  When  war  breaks  out,  the  question, 
what  shall  be  done  with  enemy  property  in  our  country,  is  a 
question  rather  of  policy  than  of  law.  The  rule  which  we  apply 
to  the  property  of  our  enemy,  will  be  applied  by  him  to  the 
property  of  our  citizens.  Like  all  other  questions  of  policy,  it 
is  proper  for  the  consideration  of  a  department  which  can  mod- 
ify it  at  will ;  not  for  the  consideration  of  a  department  which  can 
pursue  only  the  law  as  it  is  written.  It  is  proper  for  the  consid- 
eration of  the  legislature,  not  of  the  executive  or  judiciary. 

It  appears  to  the  Court,  that  the  power  of  confiscating  enemy 
property  is  in  the  legislature,  and  that  the  legislature  has  not 
declared  its  will  to  confiscate  property  which  was  within  our 
territory  at  the  declaration  of  war.  The  Court  is  therefore  of 
opinion  that  there  is  error  in  the  sentence  of  condemnation  pro- 
nounced in  the  Circuit  Court  in  this  case,  and  doth  direct  that 
the  same  be  reversed  and  annulled,  and  that  the  sentence  of  the 
District  Court  be  affirmed. 

[MR.  JUSTICE  STORY  dissented  on  the  ground  that  the  confisca- 
tion of  enemy  property  had  been  authorized  by  Congress.  In 
his  dissenting  opinion  the  learned  judge  incorporated  the  opin- 
ion which  he  had  rendered  in  the  case  in  the  Circuit  Court.] 


JURAGUA  IRON  COMPANY,  LIMITED,  v.  UNITED 
STATES. 

SUPREME  COURT  OF  THE  UNITED  STATES.    1909. 
212  U.  S.  297. 

Appeal  from  the  Court  of  Claims. 

[The  plaintiff,  a  Pennsylvania  corporation  having  its  prin- 
cipal office  and  place  of  business  in  Philadelphia,  owned  mines 
and  other  works  in  Cuba,  together  with  real  estate  upon  which 
stood  66  buildings  used  chiefly  as  dwellings  for  its  employees. 
In  1898,  while  the  war  between  the  United  States  and  Spain 
was  in  progress,  the  lives  of  the  American  troops  who  were  en- 


JURAGUA  IRON  CO.  UNITED  STATES.  527 

gaged  in  military  operations  in  the  Province  of  Santiago  de  Cuba 
were  endangered  by  the  prevalence  of  yellow  fever.  As  a  means 
of  protection  General  Miles  ordered  ' '  all  places  of  occupation  or 
habitation  which  might  contain  the  fever  germs"  to  be  de- 
stroyed. In  accordance  with  this  order,  the  66  buildings  belong- 
ing to  the  plaintiff  were  burned  and  it  suffered  damage  to  the 
amount  of  $31,166,  for  the  recovery  of  which  this  suit  was 
brought.  The  Court  of  Claims  denied  any  liability  on  the  part 
of  the  United  States,  and  the  plaintiff  appealed.] 

MR.  JUSTICE  HARLAN  delivered  the  opinion  of  the  court.   .  .   . 

It  is  to  be  observed  at  the  outset  that  no  fact  was  found  that 
impeached  the  good  faith,  either  of  General  Miles  or  of  his  med- 
ical staff,  when  the  former,  by  the  advice  of  the  latter,  ordered 
the  destruction  of  the  property  in  question;  nor  any  fact  from 
which  it  could  be  inferred  that  such  an  order  was  not  necessary 
in  order  to  guard  the  troops  against  the  dangers  of  yellow  fever. 
It  is  therefore  to  be  assumed  that  the  health,  efficiency  and  safe- 
ty of  the  troops  required  that  to  be  done  which  was  done. 
Under  these  circumstances  was  the  United  States  under  any 
legal  obligation  to  make  good  the  loss  sustained  by  the  owner  of 
the  property  destroyed?  .  .  . 

The  plaintiff  contends  that  the  destruction  of  the  property 
by  order  of  the  military  commander  representing  the  authority 
and  power  of  the  United  States  was  such  a  taking  of  private 
property  for  public  use  as  to  imply  a  constitutional  obligation, 
on  the  part  of  the  Government,  to  make  compensation  to  the 
owner.  Const.  Amend.  V.  In  support  of  that  view  it  refers  to 
United  States  v.  Great  Falls  Mfg.  Co.,  112  U.  S.  645,  656 ;  Great 
Falls  Mfg.  Co.  v.  Attorney  General,  124  U.  S.  581,  597-8; 
United  States  v.  Lynah,  188  U.  S.  445.  Let  us  examine  those 
«ases.  .  .  . 

It  is  clear  that  these  cases  lend  no  support  to  the  proposition 
that  an  implied  contract  arose  on  the  part  of  the  United  States 
to  make  compensation  for  the  property  destroyed  by  order  of 
General  Miles.  The  cases  cited  arose  in  a  time  of  peace  and  in 
each  it  was  claimed  that  there  was  within  the  meaning  of  the 
Constitution  an  actual  taking  of  property  for  the  use  of  the 
United  States,  and  that  the  taking  was  by  authority  of  Congress. 
That  taking,  it  was  adjudged,  created  by  implication  an  obliga- 
tion to  make  the  compensation  required  by  the  Constitution. 
But  can  such  a  principle  be  enforced  in  respect  of  property  de- 


528      WAR  RIGHTS  AS  TO  PRIVATE  PROPERTY. 

stroyed  by  the  United  States  in  the  course  of  military  operations 
for  the  purpose,  and  only  for  the  purpose,  of  protecting  the 
health  and  lives  of  its  soldiers  actually  engaged  at  the  time  in 
war  in  the  enemy's  country?  "We  say  "enemy's  country"  be- 
cause, under  the  recognized  rules  governing  the  conduct  of  a 
war  between  two  nations,  Cuba,  being  a  part  of  Spain,  was 
enemy's  country,  and  all  persons,  whatever  their  nationality, 
who  resided  there  were,  pending  such  war,  to  be  deemed  enemies 
of  the  United  States  and  of  all  its  people.  The  plaintiff,  al- 
though an  American  corporation,  doing  business  in  Cuba,  was, 
during  the  war  with  Spain,  to  be  deemed  an  enemy  to  the  United 
States  with  respect  of  its  property  found  and  then  used  in  that 
country,  and  such  property  could  be  regarded  as  enemy's  prop- 
erty, liable  to  be  seized  and  confiscated  by  the  United  States  in 
the  progress  of  the  war  then  being  prosecuted;  indeed,  subject 
under  the  laws  of  war  to  be  destroyed  whenever,  in  the  conduct 
of  military  operations,  its  destruction  was  necessary  for  the 
safety  of  our  troops  or  to  weaken  the  power  of  the  enemy. 

In  Miller  v.  United  States,  11  Wall.  268,  305,  the  court,  speak- 
ing of  the  powers  possessed  by  a  nation  at  war,  said:  "It  is 
sufficient  that  the  right  to  confiscate  the  property  of  all  public 
enemies  is  a  conceded  right.  Now,  what  is  the  right,  and  why 
is  it  allowed  ?  It  may  be  remarked  that  it  has  no  reference  what- 
ever to  the  personal  guilt  of  the  owner  of  confiscated  property, 
and  the  act  of  confiscation  is  not  a  proceeding  against  him.  The 
confiscation  is  not  because  of  crime,  but  because  of  the  relation 
.of  the  property  to  the  opposing  belligerent,  a  relation  in  which 
it  has  been  brought  in  consequence  of  its  ownership.  It  is  im- 
material to  it  whether  the  owner  be  an  alien  or  a  friend,  or  even 
a  citizen  or  subject  of  the  power  that  attempts  to  appropriate 
the  property.  In  either  case  the  property  may  be  liable  to  con- 
fiscation under  the  rules  of  war.  It  is  certainly  enough  to  war- 
rant the  exercise  of  this  belligerent  right  that  the  owner  be  a 
resident  of  the  enemy's  country,  no  matter  what  his  national- 
ity." In  Lamar's  Ex'r  v.  Browne,  92  U.  S.  187,  194,  the  court 
said:  "For  the  purposes  of  capture,  property  found  in  enemy 
territory  is  enemy  property,  without  regard  to  the  status  of  the 
owner.  In  war,  all  residents  of  enemy  country  are  enemies." 
"All -property  within  enemy  territory,"  said  the  court  in  Young 
v.  United  States,  97  U.  S.  39,  60,  "is  in  law  enemy  property, 
just  as  all  persons  in  the  same  territory  are  enemies.  A  neutral 
owning  property  within  the  enemy's  lines  holds  it  as  enemy 


JURAGUA  IRON  CO.  UNITED  STATES.  529 

property,  subject  to  the  laws  of  war;  and  if  it  be  hostile  prop- 
erty, subject  to  capture."  Referring  to  the  rules  of  war  be- 
tween independent  nations  as  recognized  on  both  sides  in  the 
late  Civil  War,  the  court,  in  United  States  v.  Pacific  Railroad 
Co.,  120  U.  S.  227,  233,  239,  said:  "The  rules  of  war,  as  rec- 
ognized by  the  public  law  of  civilized  nations,  became  applicable 
to  the  contending  forces.  .  .  .  The  inhabitants  of  the  Con- 
federate States  on  the  one  hand  and  of  the  States  which  ad- 
hered to  the  Union  on  the  other  became  enemies,  and  subject  to 
be  treated  as  such,  without  regard  to  their  individual  opinions 
or  dispositions;  while  during  its  continuance  commercial  inter- 
course between  them  was  forbidden,  contracts  between  them 
were  suspended,  and  the  courts  of  each  were  closed  to  the  citi- 
zens of  the  other.  Brown  v.  Hiatts,  14  Wall.  177,  184.  .  .  . 
More  than  a  million  of  men  were  in  the  armies  on  each  side. 
The  injury  and  destruction  of  private  property  caused  by  their 
operations,  and  by  measures  necessary  for  their  safety  and  effi- 
ciency, were  almost  beyond  calculation.  For  all  injuries  and 
destruction  which  followed  necessarily  from  these  causes  no  com- 
pensation could  be  claimed  from  the  Government.  By  the  well- 
settled  doctrines  of  public  law  it  was  not  responsible  for  them. 
The  principle  that,  for  injuries  to  or  destruction  of 
private  property  in  necessary  military  operations,  during  the 
civil  war,  the  Government  is  not  responsible,  is  thus  considered 
established.  Compensation  has  been  made  in  several  such  cases, 
it  is  true;  but  it  has  generally  been,  as  stated  by  the  President 
in  his  veto  message,  'a  matter  of  bounty  rather  than  of  strict 
legal  right.'  "  See  also  The  Venus,  8  Cranch,  253,  278;  The 
Venice,  2  Wall.  258,  275 ;  The  Cheshire,  3  Wall.  231,  233 ;  The 
Gray  Jacket,  5  Wall.  342,  345,  369 ;  The  Friendschaft,  4  Wheat. 
105,  107 ;  Griswold  v.  Waddington,  16  Johns.  438,  446-7 ;  Vattel, 
b.  3,  c.  5,  Sec.  70,  and  c.  4,  Sec.  8;  Burlamaqui,  Pt.  4,  c.  4, 
Sec.  20. 

So  in  Hall's  International  Law,  5th  ed.,  500,  504,  533:  "A 
person  though  not  a  resident  in  a  country  may  be  so  associated 
with  it  through  having  or  being  a  partner  in  a  house  of  trade 
as  to  be  affected  by  its  enemy  character,  in  respect  at  least  of  the 
property  which  he  possesses  in  the  belligerent  territory."  In 
Whiting's  War  Powers  Under  the  Constitution,  340,  342,  the 
author  says:  "A  foreigner  may  have  his  personal  or  permanent 
domicile  in  one  country,  and  at  the  same  time  his  constructive 
or  mercantile  domicile  in  another.  The  national  character  of 


530      WAR  RIGHTS  AS  TO  PRIVATE  PROPERTY. 

a  merchant,  so  far  as  relates  to  his  property  engaged  in  trade, 
is  determined  by  his  commercial  domicile.  'All  such  persons 
.  .  .  are  de  facto  subjects  of  the  enemy  sovereign,  being  res- 
idents within  his  territory,  and  are  adhering  to  the  enemy  so 
long  as  they  remain  within  his  territory.'  ...  A  neutral, 
or  a  citizen  of  the  United  States,  domiciled  in  the  enemy's  coun- 
try, not  only  in  respect  to  his  property,  but  also  as  to  his  ca- 
pacity to  sue,  is  deemed  as  much  an  alien  enemy  as  a  person 
actually  born  under  the  allegiance  and  residing  within  the  do- 
minions of  the  hostile  nation." 

In  view  of  these  principles — if  there  were  no  other  reason — 
the  plaintiff  corporation  could  not  invoke  the  protection  of  the 
Constitution  in  respect  of  its  property  used  in  business  in  Cuba, 
during  the  war,  any  more  than  a  Spaniard  residing  there  could 
have  done,  under  like  circumstances,  in  reference  to  his  property 
then  in  that  island.  If  the  property  destroyed  by  order  of  Gen- 
eral Miles  had  belonged  at  the  time  to  a  resident  Cuban,  the 
owner  would  not  have  been  heard  in  any  court,  under  the  facts 
found,  to  claim,  as  upon  implied  contract,  compensation  from 
the  United  States  on  account  pf.  such  destruction.  How  then 
under  the  facts  found  could  an  obligation,  based  on  implied 
contract,  arise  under  the  Constitution  in  favor  of  the  plaintiff, 
an  American  corporation,  which  at  the  time  and  in  reference  to 
the  property  in  question  had  a  commercial  domicile  in  the 
enemy's  country?  It  is  true  that  the  army,  under  General 
Miles,  was  under  a  duty  to  observe  the  rules  governing  the  con- 
duct of  independent  nations  when  engaged  in  war — a  duty  for 
the  proper  performance  of  which  the  United  States  may  have 
been  responsible  in  its  political  capacity  to  the  enemy  govern- 
ment. If  what  was  done  was  in  conformity  to  those  rules — as 
upon  the  facts  found  we  must  assume  that  it  was — then  the 
owner  of  the  property  has  no  claim  of  any  kind  for  compensa- 
tion or  damages;  for,  in  such  a  case  the  Commanding  General 
has  as  much  right  to  destroy  the  property  in  question  if  the 
health  and  safety  of  his  troops  required  that  to  be  done,  as  he 
would  have  had  if  at  the  time  the  property  had  been  occupied 
and  was  being  used  by  the  armed  troops  of  the  enemy  for  hostile 
purposes.  .  .  .  The  judgment  of  the  Court  of  Claims  must  be 
affirmed.  It  is  so  ordered. 

NOTE. — Until  well  toward  the  end  of  the  eighteenth  century,  enemy 
property  on  land  was  held  to  be  subject  to  capture,  and  the  pillaging 
of  places  occupied  by  a  hostile  force  was  one  of  the  most  brutal  in- 


NOTE.  531 

cidetits  of  warfare.  The  case  of  Ware  v.  Hylton  (1796),  3  Dallas,  199, 
which  involved  the  validity  of  a  statute  of  Virginia  confiscating  debts 
due  to  British  subjects,  indicates  the  division  of  opinion  which  pre- 
vailed at  that  time.  Justice  Chase  said: 

Every  nation  at  war  with  another  is  justifiable  by  the  gen- 
eral and  strict  law  of  nations,  to  seize  and  confiscate  all 
moveable  property  of  its  enemy,  of  any  kind  or  nature  what- 
soever, wherever  found,  whether  within  its  territory  or  not. 

On  the  other  hand,  Justice  Wilson  expressed  the  view  which  was 
finally  to  prevail  when  he  said: 

By  every  nation,  whatever  is  its  form  of  government,  the 
confiscation  of  debts  has  long  been  considered  disreputable. 

While  the  confiscation  of  private  property  on  land  is  now  generally 
reprobated,  and  is  explicitly  forbidden  by  the  Hague  Convention  of 
1907  on  The  Laws  and  Customs  of  War  on  Land,  art.  46,  the  strictness 
of  the  rule  varies  with  the  kind  of  property  involved.  Even  in  the 
middle  of  the  eighteenth  century  the  attempt  of  Frederick  the  Great 
to  sequestrate  the  interest  due  on  a  portion  of  his  public  debt  owned 
by  British  subjects  was  strongly  condemned.  Frederick's  act  was 
regarded  as  "particularly  reprehensible  because  it  seemed  to  involve  his 
honor.  On  this  controversy,  known  as  the  case  of  the  Silesian  Loan, 
see  Moore,  Digest,  VII,  307;  Calvo,  IV,  sec.  1917;  Sir  Ernest  Satow, 
The  Silesian  Loan  and  Frederick  the  Great.  As  to  the  power  to  con- 
fiscate private  debts  see  Wolff  v.  Oxholm  (1817),  6  Maule  &  Selwyn, 
92;  Hanger  v.  Abbott  (1868),  6  Wallace,  532;  Planters'  Bank  v.  Union 
Bank  (1873),  16  Ib.  483;  Williams  v.  Bruffy  (1878),  96  U.  S.  176; 
Young  v.  United  States  (1878),  97  U.  S.  39.  In  1861  and  1862  Con- 
gress passed  two  acts  by  which  the  confiscation  of  enemy  private  prop- 
erty which  was  being  used  in  aid  of  the  rebellion  was  authorized. 
As  to  their  operation  see  Conrad  v.  Waples  (1878),  96  U.  S.  279; 
Jenkins  v.  Collard  (1892),  145  U.  S.  546;  United  States  v.  Dunning- 
ton  (1892),  146  U.  S.  338  and  cases  cited.  Property  which  is  of  par- 
ticular service  in  connection  with  the  war  is  of  course  liable  to 
seizure.  In  the  American  Civil  War  cotton  was  the  chief  reliance 
of  the  Confederacy  for  the  purchase  of  supplies,  and  hence  was 
deemed  subject  to  capture,  Mrs.  Alexander's  Cotton  (1865),  2  Wallace, 
404.  In  the  case  of  In  re  Ferdinand,  Ex-Tsar  of  Bulgaria  (1920), 
L.  R.  [1921],  1  Ch.  107,  the  Court  of  Appeal  carefully  examined  the 
prerogative  of  the  Crown  to  confiscate  enemy  private  property  found  in 
the  kingdom,  and  decided  that  the  right,  subject  to  the  provisions  of 
the  Trading  with  the  Enenty  Acts,  still  exists.  Its  exercise  however  was 
held  to  be  inconsistent  with  those  Acts.  For  further  discussion  see 
Moore,  Digest,  VII,  280;  Borchard,  sec.  103  seq.  (where  the  subject  is 
considered  from  the  standpoint  of  the  creation  of  a  claim  for  remun- 
eration);  Cobbett,  Cases  and  Opinions,  II,  52;  Bonfils  (Fauchille),  sec. 
1056;  Magoon,  264;  Latifi,  Effects  of  War  on  Property;  Spaight,  War 
Rights  on  Land. 


532      WAR  EIGHTS  AS  TO  PRIVATE  PROPERTY. 

In  the  Great  War,  the  belligerent  governments  quite  generally  re- 
sorted to  the  practice  of  seizing  and  sequestrating  enemy  private  prop- 
erty found  within  their  jurisdiction.  See  "Jurisdiction  to  Confiscate 
Debts,"  Harvard  Law  Revieio,  XXXV,  960;  Garner,  I,  ch.  iv.  For  in- 
terpretations of  American  legislation,  see  Central  Union  Trust  Co.  v. 
Garvan  (1921),  254  U.  S.  554;  Stoehr  v.  Wallace  (1921),  255  U.  S. 
239. 

Prior  to  the  outbreak  of  the  Great  War,  the  ancient  practice 
of  detaining  the  ships  of  countries  with  which  war  had  broken 
out  or  was  thought  to  be  impending  seemed  to  be  falling  into  dis- 
use. At  the  outbreak  of  the  Crimean  War  in  1854,  Great  Britain, 
Prance  and  Russia  allowed  enemy  vessels  in  their  ports  six  weeks  in 
which  to  depart.  See  The  Phoenix  (1854),  Spinks,  Prize  Cases,  1. 
A  similar  practice  with  a  varying  period  of  grace  was  followed  by 
Prussia  in  1866,  by  France  and  Prussia  in  1870  and  by  Russia  and 
Turkey  in  1877.  In  the  Spanish-American  War  the  United  States 
granted  a  delay  of  thirty  days,  which  was  liberally  interpreted  in  The 
Buena  Ventura  (1899),  175  U.  S.  384.  The  spirit  if  not  the  letter  of 
the  Sixth  Convention  of  the  Second  Hague  Conference  was  in  har- 
mony with  the  international  practice  of  the  preceding  half-century. 
At  the  opening  of  the  Great  War  Great  Britain  allowed  enemy  mer- 
chant ships  of  less  than  6,000  tons  ten  days  in  which  to  load  and 
depart.  This  was  conditioned  however  upon  reciprocity  'of  treatment 
by  Germany.  Through  a  miscarriage  of  the  communications  between 
the  two  governments  they  failed  to  reach  an  understanding  and  con- 
sequently the  British  declaration  did  not  become  operative.  See  The 
Chile  (1914),  L.  R.  [1914;]  P.  212;  The  Mowe  (1914),  L.  R.  [1915]  P.  1; 
The  Bellas  (Canada,  1914),  1  Br.  &  Col.  P.  C.  95.  In  the  absence  of 
any  agreement  to  the  contrary  enemy  ships  in  port  at  the  outbreak 
of  war  are  subject  to  seizure  as  prize,  The  Marie  Leonhardt  (1920), 
L.  R.  [1921]  P.  1;  but  in  accordance  with  art.  2  of  Hague  Convention 
No.  VI,  the  value  of  a  German  vessel  which  had  been  detained  by 
Great  Britain  at  the  outbreak  of  the  war  and  requisitioned  and  which 
had  been  destroyed  by  a  German  vessel  was  awarded  to  the  Ger- 
man claimant,  The  Blonde  (1922),  L.  R.  [1922]  1  A.  C.  313.  A  vessel 
which  remains  in  an  enemy  port  because  it  had  not  been  informed  in 
unambiguous  terms  that  it  would  be  allowed  to  leave  within  a  certain 
period  is  not  subject  to  confiscation  if  it  remains  beyond  that  period, 
The  Tumi  (1919),  L.  R.  [1919]  A.  C.  515.  The  practice  of  the  various 
belligerents  at  the  beginning  of  the  Great  War  is  well  summarized  in 
Garner,  I,  Ch.  vi. 

In  general  a  military  force  in  occupation  of  a  conquered  country 
may  seize  for  its  own  use  any  private  property  therein  which  it  deems 
necessary  or  convenient,  and  the  validity  of  such  seizures  cannot  be 
questioned  in  the  municipal  tribunals  of  the  district  where  they  occur, 
Elphinstone  v.  Bedreechund  (1817),  1  Knapp,  P.  C.  316;  Dow  v. 
Johnson  (1879),  100  U.  S.  158,  167.  In  the  case  of  the  destruction  of  pri- 
vate property  on  the  ground  of  military  necessity,  the  degree  of  the 
necessity  does  not  present  a  justiciable  question,  Ex  parte  Marais, 
L.  R,  [1902]  A.  C.  109.  See  also  Mitchell  v.  Harmony  (1852),  13 


NOTE.  533 

Howard,  115;  The  Prize  Cases  (1863),  2  Black,  635;  The  William 
Bagaley  (1867),  5  Wallace,  377;  Miller  r.  United  States  (1871),  11  Ib. 
268;  United  States  v.  Farragut  (1875),  22  Ib.  406;  Hijo  v.  United 
States  (1904),  194  U.  S.  315;  Grant  v.  United  States  (1863),  1  Ct. 
Cl.  41;  Wiggins  v.  United  States  (18G8),  3  Ib.  412;  Green  v.  United 
States  (1875),  10  Ib.  466;  Gooch  v.  United  States  (1880),  15  Ib.  281; 
Heflebower  v.  United  States  (1886),  21  Ib.  228;  Brandon  v.  United 
States  (1911),  46  Ib.  559.  See  also  Borchard,  sec  103;  Cobbett,  Cases 
and  Opinions,  II,  52;  Hyde,  II,  306;  Moore,  Digest,  VI,  833. 

The  term  jus  angariae  or  right  of  angary  is  applied  to  the  right 
of  a  state  to  seize,  in  the  presence  of  an  urgent  necessity,  the  prop- 
erty of  a  friendly  state  or  of  its  nationals  which  may  be  within  its 
borders  and  to  utilize  or  destroy  such  property  subject  always  to  the 
owner's  right  to  full  indemnification.  On  principle  the  right  is  ap- 
plicable to  the  seizure  of  all  kinds  of  property  in  both  peace  and  war, 
but  in  practice  the  term  is  generally  applied  only  to  the  seizure  of 
vessels  in  time  of  war.  By  article  19  of  Hague  Convention  No.  5, 
however,  special  provision  is  made  for  the  seizure  of  railway  ma- 
terials and  the  exercise  of  the  right  was  expressly  extended  to  the 
property  of  neutrals. 

The  best  known  examples  of  the  exercise  of  the  right  of  angary 
are  Napoleon's  seizure  in  1798  of  many  neutral  vessels  in  French 
ports  on  the  Mediterranean  for  use  on  his  Egyptian  Expedition;  the 
seizure  by  the  Prussians  in  1870  of  rolling  stock  of  the  Austrian  and 
Swiss  railways  and  of  several  British  colliers  which  were  sunk  in  / 
the  Seine;  and  the  seizure  by  Great  Britain  and  the  United  States  of 
Dutch  vessels  in  their  ports  in  1918.  In  all  these  cases,  compensation 
was  made  or  promised.  While  still  at  peace  with  Germany,  Italy  in 
1915  requisitioned  the  German  ships  in  her  ports,  and  Portugal,  while 
yet  a  neutral,  requisitioned  the  German  vessels  which  had  long  found 
refuge  in  her  harbors.  Some  writers,  notably  Basdevant,  have 
treated  these  seizures  as  extensions  of  the  light  of  angary  to  neu- 
trals. It  would  seem  better  however  to  recognize  them  merely  as  an 
exercise  by  Italy  and  Portugal  of  their  territorial  sovereignty,  not 
dependent  in  any  way  upon  the  peculiar  considerations  upon  which' 
the  right  of  angary  has  been  supported.  In  much  of  the  discussion 
of  the  right  of  angary,  there  is  a  confusion  between  the  right  of  a 
belligerent  to  requisition  property  which  has  been  captured  and  is 
in  the  custody  of  its  prize  court  and  its  right  to  requisition  neutral 
property  which  is  within  its  jurisdiction  through  innocent  and  .legiti- 
mate employment  therein  by  the  voluntary  act  of  its  owner.  The  two 
should  be  distinguished.  In  requisitioning  property  in  the  custody 
of  its  prize  court  the  state  is  merely  exercising  in  anticipation  its 
right  of  ownership,  for  the  claimant  must  assume  the  burden  of  sat- 
isfying the  prize  court  that  the  capture  of  his  property  was  unlawful, 
which  in  most  cases  he  is  unable  to  do.  In  the  case  of  neutral  prop- 
erty brought  voluntarily  within  the  belligerent's  jurisdiction  for  an 
innocent  purpose,  the  state  seizes  it  because  of  its  sovereign  power 
over  all  persons  and  things  within  its  territories.  Fundamentally  this 
is  the  principle  upon  the  right  of  angary  rests.  When  the  Govern- 


534      WAR  RIGHTS  AS  TO  PRIVATE  PROPERTY. 

ment  of  the  Netherlands,  upon  the  seizure  of  the  Dutch  vessels  In 
British  ports  in  1918,  said  that  the  seizure  en  masse  of  a  neutral's 
merchant  fleet  could  not  be  justified  under  an  ancient  usage  which 
applied  only  to  the  taking  of  individual  ships  to  meet  an  immediate 
necessity,  the  Earl  of  Balfour  made  this  conclusive  reply: 

It  is  commonplace  that  the  rights  of  a  sovereign  State  ex- 
tend over  all  property  within  its  jurisdiction,  irrespective  of 
ownership,  and  neutral  property  within  belligerent  jurisdic- 
tion is,  in  the  absence  of  special  treaty  stipulation,  as  liable 
to  requisition  in  case  of  emergency  as  the  property  of  subjects. 
.  .  .  The  fact  that  the  exercise  of  this  right  has  received 
a  particular  name  should  not  obscure  the  truth  that  it  is  a 
legal  exercise  of  the  right  of  a  sovereign  State,  and  not  an 
act  by  a  belligerent  based  on  no  principle  of  law,  and  for 
which  the  only  justification  is  to  be  found  in  usage. 

British  State  Papers,  Miscellaneous  (1918),  No.  5. 

The  most  comprehensive  treatment  of  the  right  of  angary  is  found 
in  A.  B.  Albrecht,  "Requisitionen  von  neutralem  Privateigentum,  in- 
besondere  von  Schiffen,"  in  Zeitschrift  fur  Volkerrecht  und  Bundes- 
staatsrecht,  VI,  supplement  I.  See  also  J.  Basdevant,  "La  requisition 
des  navires  allemands  en  Portugal,"  in  Revue  Generate  de  Droit  In- 
ternational Public,  XXIII,  268;  Spaight,  War  Rights  on  Land;  Kleen, 
Lois  et  Usages  de  la  Neutrality :  Phillimore,  Commentaries  upon  In- 
ternational Law;  Hall,  International  Law  (7th  ed.),  812;  J.  Eugene 
Barley,  "The  Law  of  Angary,"  Am.  Jour.  Int.  Law.  XIII,  267;  Allin, 
"The  Right  of  Angary,"  Minnesota  Law  Review,  II,  415;  Hyde,  II, 
261. 

I 


SKCTION  2.    THE  RIGHT  OP  VISIT,  SEARCH  AND  CAPTURE  ON  THE 

HIGH  SEAS. 

A  DUTCHMAN  AGAINST  LINDSAY 

COUBT  OF  SESSION  OF  SCOTLAND.     1558. 
Morison,  Decisions  of  the  Court  of  Session,  11857. 

Anent  the  action  pursued  [brought]  by  a  Dutchman  against 
Lindsay,  dwelling  in  Leith,  for  restoring  of  a  ship  to  the  said 
Dutchman,  alleged  to  be  spuilzied  [taken]  from  him  by  certain 
pirates  on  the  sea,  and  found  and  apprehended  in  the  possession 
of  the  said  Lindsay,  in  the  haven  of  Leith,  and  desired  by  the 
said  Dutchman  to  be  restored  to  him  again,  it  was  alleged  by 
the  said  Lindsay,  that  he  ought  not  to  restore  the  said  ship  to 
the  said  Dutchman,  because  he  bona  fide  coft  [bought]  the  said 


THE  MARIA.  ^          535 

ship  from  a  French  man  of  war,  who  took  the  said  ship  from  an 
Hollander,  who  was  bringing  victuals  to  the  town  of  Berwick, 
in  time  of  war,  to  furnish  our  old  enemies  of  England,  and  also 
prehabatur  inter  reges  Gallorum,  and  the  Hollanders,  and  Flem- 
ings, and  English,  and  so  was  just  prize  to  the  said  Frenchman 
that  sold  her  to  the  said  Lindsay,  which  allegeance  [allegation] 
was  admitted  to  the  said  Lindsay's  probation. 


THE  MARIA. 

HIGH  COXJBT  OF  ADMIRALTY  OF  ENGLAND.     1799. 
1  C.  Robinson,  340. 

This  was  the  leading  case  of  a  fleet  of  Swedish  merchantmen, 
carrying  pitch,  tar,  hemp,  deals,  and  iron  to  several  ports  of 
France,  Portugal,  and  the  Mediterranean ;  and  taken,  Jan.  1798, 
sailing  under  convoy  of  a  ship  of  wrar,  and  proceeded  against  for 
resistance  of  visitation  and  search  by  British  cruisers.  .  .  . 

Sir  W.  SCOTT  [LORD  STOWELL]  :  .  .  .  I  trust  that  it  has 
not  escaped  my  anxious  recollection  for  one  moment  what  it 
is  that  the  duty  of  my  station  calls  for  from  me; — namely,  to 
consider  myself  as  stationed  here,  not  to  deliver  occasional  and 
shifting  opinions  to  serve  present  purposes  of  particular  nation- 
al interest,  but  to  administer  with  indifference  that  justice  which 
the  law  of  nations  holds  out,  without  distinction  to  independent 
states,  some  happening  to  be  neutral  and  some  to  be  belligerent. 
The  seat  of  judicial  authority  is,  indeed,  locally  here,  in  the 
belligerent  country,  according  to  the  known  law  and  practice  of 
nations:  but  the  law  itself  has  no  locality. — It  is  the  duty  of 
the  person  who  sits  here  to  determine  this  question  exactly  as  he 
would  determine  the  same  question  if  sitting  at  Stockholm ; — 
to  assert  no  pretensions  on  the  part  of  Great  Britain  which  he 
would  not  allow  to  Sweden  in  the  same  circumstances,  and  to 
impose  no  duties  on  Sweden,  as  a  neutral  country,  which  he 
would  not  admit  to  belong  to  Great  Britain  in  the  same  char- 
acter. .  .  .  [Here  follows  an  examination  of  the  facts  of 
the  capture  and  the  instructions  to  the  Swedish  cruisers.] 

Removing  mere  civility  of  expression,  what  is  the  real  import 
of  these  instructions?  Neither  more  nor  less  than  this,  accord- 


536      WAR  RIGHTS  AS  TO  PRIVATE  PROPERTY. 

ing  to  my  apprehension: — "If  you  meet  with  the  cruisers  of 
the  belligerent  states,  and  they  express  an  intention  of  visiting 
and  searching  the  merchant-ships,  you  are  to  talk  them  out  of 
their  purpose  if  you  can ;  and  if  you  can 't,  you  are  to  fight  them 
out  of  it. ' '  That  is  the  plain  English,  and,  I  presume,  the  plain 
Swedish,  of  the  matter.  .  .  . 

This  being  the  actual  state  of  facts,  it  is  proper  for  me  to 
examine,  2dly,  what  is  their  legal  state,  or,  in  other  words,  to 
what  considerations  they  are  justly  subject,  according  to  the 
law  of  nations;  for  which  purpose  I  state  a  few  principles  of 
that  system  of  law  which  I  take  to  be  incontrovertible. 

1st,  That  the  right  of  visiting  and  searching  merchant-ships 
upon  the  high  seas,  whatever  be  the  ships,  whatever  be  the  car- 
goes, whatever  be  the  destinations,  is  an  incontestible  right  of 
the  lawfully  commissioned  cruisers  of  a  belligerent  nation.  I  say, 
be  the  ships,  the  cargoes,  and  the  destinations  what  they  may, 
because,  till  they  are  visited  and  searched,  it  does  not  appear 
what  the  ships,  or  the  cargoes,  or  the  destinations  are;  and  it 
is  for  the  purpose  of  ascertaining  these  points  that  the  necessity 
of  this  'right  of  visitation  and  search  exists.  This  right  is  so 
clear  in  principle,  that  no  man  can  deny  it  who  admits  the  legal- 
ity of  maritime  capture;  because  if  you  are  not  at  liberty  to 
ascertain  by  sufficient  inquiry  whether  there  is  property  that 
can  legally  be  captured,  it  is  impossible  to  capture.  Even  those 
who  contend  for  the  inadmissible  rule,  that  free  ships  make  free 
goods,  must  admit  the  exercise  of  this  right  at  least  for  the 
purpose  of  ascertaining  whether  the  ships  are  free  ships  or  not. 
The  right  is  equally  clear  in  practice;  for  practice  is  uniform 
and  universal  upon  the  subject.  The  many  European  treaties 
which  refer  to  this  right,  refer  to  it  as  pre-existing,  and  merely 
regulate  the  exercise  of  it.  All  writers  upon  the  law  of  nations 
unanimously  acknowledge  it,  without  the  exception  even  of 
Hubner  himself,  the  great  champion  of  neutral  privileges.  In 
short,  no  man  in  the  least  degree  conversant  in  subjects  of  this 
kind  has  ever,  that  I  know  of,  breathed  a  doubt  upon  it.  The 
right  must  unquestionably  be  exercised  with  as  little  of  personal 
harshness  and  of  vexation  in  the  mode  as  possible;  but  soften 
it  as  much  as  you  can,  it  is  still  a  right  of  force,  though  of  law- 
ful force — something  in  the  nature  of  civil  process,  where  force 
is  employed,  but  a  lawful  force,  which  cannot  lawfully  be  re- 
sisted. For  it  is  a  wild  conceit  that  wherever  force  is  used,  it 
may  be  forcibly  resisted;  a  lawful  force  cannot  lawfully  be  re- 


THE  MARIA.  537 

misted.  The  only  case  where  it  can  be  so  in  matters  of  this  na- 
ture, is  in  the  state  of  war  and  conflict  between  two  countries, 
where  one  party  has  a  perfect  right  to  attack  by  force,  and  the 
other  has  an  equally  perfect  right  to  repel  by  force.  But  in  the 
relative  situation  of  two  countries  at  ponce  with  each  other,  no 
such  conflicting  rights  can  possibly  coexist. 

2dly,  That  the  authority  of  the  Sovereign  of  the  neutral  coun- 
try being  interposed  in  any  manner  of  mere  force  cannot  legally 
vary  the  rights  of  a  lawfully-commissioned  belligerent  cruiser ;  I 
say  legally,  because  what  may  be  given,  or  be  fit  to  be  given,  in 
the  administration  of  this  species  of  law,  to  considerations  of 
comity  or  of  national  policy,  are  views  of  the  matter  which, 
sitting  in  this  Court,  I  have  no  right  to  entertain.  All  that  I 
assert  is,  that  legally  it  cannot  be  maintained,  that  if  a  Swedish 
commissioned  cruiser,  during  the  wars  of  his  own  country,  has 
a  right  by  the  law  of  nations  to  visit  and  examine  neutral  ships, 
the  King  of  England,  being  neutral  to  Sweden,  is  authorized  by 
that  law  to  obstruct  the  exercise  of  that  right  with  respect  to 
the  merchant-ships  of  his  country.  I  add  this,  that  I  cannot 
but  think  that  if  he  obstructed  it  by  force,  it  would  very  much 
resemble  (with  all  due  reverence  be  it  spoken)  an  opposition  of 
illegal  violence  to  legal  right.  Two  sovereigns  may  unquestion- 
ably agree,  if  they  think  fit,  (as  in  some  late  instances  they  have 
agreed,)  by  special  covenant,  that  the  presence  of  one  of  their 
armed  ships  along  with  their  merchant-ships  shall  be  mutually 
understood  to  imply  that  nothing  is  to  be  found  in  that  convoy 
of  merchant-ships  inconsistent  with  amity  or  neutrality;  and  if 
they  consent  to  accept  this  pledge,  no  third  party  has  a  right  to 
quarrel  with  it  any  more  than  with  any  other  pledge  which  they 
may  agree  mutually  to  accept.  But  surely  no  sovereign  can  le- 
gally compel  the  acceptance  of  such  a  security  by  mere  force. 
The  only  security  known  to  the  law  of  nations  upon  this  subject, 
independent  of  all  special  covenant,  is  the  right  of  personal  vis- 
itation and  search,  to  be  exercised  by  those  who  have  the  interest 
in  making  it.  I  am  not  ignorant,  that  amongst  the  loose  doc- 
trines which  modern  fancy,  under  the  various  denominations  of 
philosophy  and  philanthropy,  and  I  know  not  what,  have  thrown 
upon  the  world,  it  has  been  within  these  few  years  advanced,  or 
rather  insinuated,  that  it  might  possibly  be  well  if  such  a  secur- 
ity were  accepted.  Upon  such  unauthorized  speculations  it  is 
not  necessary  for  me  to  descant:  the  law  and  practice  of  nations 
(I  include  particularly  the  practice  of  Sweden  when  it  happens 


538      WAR  RIGHTS  AS  TO  PRIVATE  PROPERTY. 

to  be  belligerent)  give  them  no  sort  of  countenance;  and  until 
that  law  and  practice  are  new-modelled  in  such  a  way  as  may 
surrender  the  known  and  ancient  rights  of  some  nations  to  the 
present  convenience  of  other  nations,  (which  nations  may  per- 
haps REMEMBER  to  forget  them,  when  they  happen  to  be  them- 
selves belligerent),  no  reverence  is  due  to  them;  they  are  the 
elements  of  that  system  which,  if  it  is  consistent,  has  for  its  pur- 
pose an  entire  abolition  of  capture  in  war — that  is,  in  other 
words,  to  change  the  nature  of  hostility,  as  it  has  ever  existed 
amongst  mankind,  and  to  introduce  a  state  of  things  not  yet  seen 
in  the  world,  that  of  a  military  war  and  a  commercial  peace.  If 
it  were  fit  that  such  a  state  should  be  introduced,  it  is  at  least 
necessary  that  it  should  be  introduced  in  an  avowed  and  intel- 
ligible manner,  and  not  in  a  way  which,  professing  gravely  to 
adhere  to  that  system  which  has  for  centuries  prevailed  among 
civilized  states,  and  urging  at  the  same  time  a  pretension  utterly 
inconsistent  with  all  its  known  principles,  delivers  over  the  whole 
matter  at  once  to  eternal  controversy  and  conflict,  at  the  ex- 
pence  of  the  constant  hazard  of  the  harmony  of  states,  and  of 
the  lives  and  safeties  of  innocent  individuals. 

3dly,  That  the  penalty  for  the  violent  contravention  of  this 
right  is  the  confiscation  of  the  property  so  withheld  from  visita- 
tion and  search.  For  the  proof  of  this  I  need  only  refer  to 
Vattel,  one  of  the  most  correct  and  certainly  not  the  least  in- 
dulgent of  modern  professors  of  public  law.  In  BOOK  III.  c. 
vii.,  sect.  114,  he  expresses  himself  thus:  "On  ne  pent  empecher 
le  transport  des  effets  de  contrebande,  si  I'on  ne  visite  pas  les 
vaisseaux  neutres  que  I'on  rencontre  en  mer.  On  est  done  en 
droit  de  les  visiter.  Quelques  nations  puissantes  ont  refuse  en 
differents  terns  de  se  soumettre  a  cette  visite,  aujourd'hui  un 
vaisseau  neutre,  qui  refuseroit  de  souffrir  la  visite,  se  seriot  con- 
dammer  par  cela  seul,  comme  etant  de  bonne  prise."  Vattel  is 
here  to  be  considered  not  as  a  lawyer  merely  delivering  an  opin- 
ion, but  as  a  witness  asserting  the  fact — the  fact  that  such  is  the 
existing  practice  of  modern  Europe.  And  to  be  sure  the  only 
marvel  in  the  case  is,  that  he  should  mention  it  as  a  law  merely 
modern,  when  it  is  remembered  that  it  is  a  principle,  not  only 
of  the  civil  law,  (on  which  great  part  of  the  law  of  nations  is 
founded,)  but  of  the  private  jurisprudence  of  most  countries  in 
Europe, — that  a  contumacious  refusal  to  submit  to  fair  inquiry 
infers  all  the  penalties  of  convicted  guilt.  ...  I  venture  to 
lay  it  down  that  by  the  law  of  nations,  as  now  understood,  a 


THE  SALLY.  539 

deliberate  and  continued  resistance  to  search,  on  the  part  of  a 
neutral  vessel  to  a  lawful  cruiser,  is  followed  by  the  legal  con- 
sequence of  confiscation.  .  .  . 


THE  SALLY. 

THE  LORDS  COMMISSIONERS  OF  APPEALS  OF  ENGLAND.     1795. 
3  C.  Robinson,  300,  note. 

The  Sally,  Griffiths,  was  a  case  of  a  cargo  of  corn  shipped 
March  1793  by  Steward  and  Plunket  of  Baltimore,  ostensibly 
for  the  account  and  risk  of  Conyngham,  Nesbit,  and  Co.  of  Phil- 
adelphia, and  consigned  to  them  or  their  assigns: — By  an  en- 
dorsement on  the  bill  of  lading,  it  was  further  agreed  that  the 
ship  should  proceed  to  Havre  de  Grace,  and  there  wait  such 
time  as  might  be  necessary,  the  orders  of  the  consignee  of  the 
'said  cargo  (the  mayor  of  Havre),  either  to  deliver  the  same  at 
the  port  of  Havre,  or  proceed  therewith  to  any  one  port  without 
the  Mediterranean.  .  .  . 

Amongst  the  papers  was  a  concealed  letter  from  Jean  Ternant, 
the  minister  of  the  French  Republic  to  the  United  States,  in 
which  he  informs  the  minister  of  foreign  affairs  in  France,  ' '  The 
house  of  Conyngham  and  Co.  already  known  to  the  ministers, 
by  their  former  operations  for  France,  is  charged  by  me  to  pro- 
cure without  delay,  a  consignment  of  22,000  bushels  of  wheat, 
8,000  barrels  of  fine  flour,  900  barrels  of  salted  beef  from  New 
England.  The  conditions  stipulated  are  the  same  as  those  of 
the  contract  of  2d  November  1792  with  the  American  citizens 
Swan  and  Co.  ...  It  has  been  moreover  agreed,  considering 
the  actual  reports  of  war,  that  the  whole  shall  be  sent  as  Amer- 
ican property  to  Havre  and  to  Nantes,  with  power  to  our  gov- 
ernment of  sending  the  ships  to  other  ports  conditional  on  the 
usual  freight.  As  you  have  not  signified  to  me  to  whom  these 
cargoes  ought  to  be  delivered  in  our  ports,  I  shall  provide  each 
captain  with  a  lettter  to  the  mayor  of  the  place. ' ' 

There  was  also  a  letter  from  J.  Ternant  to  the  mayor  of  the 
municipality  of  Havre.  "Our  government  having  ordered  me 
to  send  supplies  of  provisions  to  your  port,  I  inform  you  that 
the  bearer  of  this,  commanding  the  American  ship  the  Sally, 


540      WAR  EIGHTS  AS  TO  PRIVATE  PROPERTY. 

is  laden  with  a  cargo  of  wheat,  of  which  lie  will  deliver  you  the 
bill  of  lading." 

To  the  12th  and  20th  interrogatories  the  master  deposed, 
"that  he  believes  the  flour  was  the  property  of  the  French  gov- 
ernment, and,  on  being  unladen,  would  have  immediately  be- 
come the  property  of  the  French  government. "... 

THE  COUET  [present  the  Earl  of  Mansfield,  Sir  R.  P.  Arden, 
M.  R.,  and  Sir  W.  Wynne]  said:  It  has  always  been  the  rule 
of  the  prize  Courts,  that  property  going  to  be  delivered  in  the 
enemy's  country,  and  under  a  contract  to  become  the  property 
of  the  enemy  immediately  on  arrival,  ii;  taken  in  transitu,  is  to 
be  considered  as  enemies'  property.  When  the  contract  is  made 
in  time  of  peace  or  without  any  contemplation  of  a  war,  no  such 
rule  exists: — But  in  a  case  like  the  present,  where  the  form  of 
the  contract  was  framed  directly  for  the  purpose  of  obviating 
the  danger  apprehended  from  approaching  hostilities,  it  is  a 
rule  which  unavoidably  must  take  place.  The  bill  of  lading  ex-( 
presses  account  and  risk  of  the  American  merchants ;  but  papers 
alone  make  no  proof,  unless  supported  by  the  depositions  of 
the  master.  Instead  of  supporting  the  contents  of  his  papers, 
the  master  deposes,  "that  on  arrival  the  goods  would  become 
the  property  of  the  French  government,"  and  all  the  concealed 
papers  strongly  support  him  in  this  testimony:  The  evidentia 
rei  is  too  strong  to  admit  farther  proof.  Supposing  that  it  was 
to  become  the  property  of  the  enemy  on  delivery,  capture  is  con- 
sidered as  delivery:  The  captors,  by  the  rights  of  war,  stand 
in  the  place  of  the  enemy,  and  are  entitled  to  a  condemnation 
of  goods  passing  under  such  a  contract,  as  of  enemy's  property. 
On  every  principle  on  which  Prize  Courts  can  proceed,  this 
cargo  must  be  considered  as  enemy's  property. 

Condemned. 


THE  PACKET  DE  BILBOA. 

HIGH  COUBT  OF  ADMIRALTY  OF  ENGLAND.     1799. 
2  C.  Robinson,  133. 

This  was  a  case  of  a  claim  of  an  English  house,  for  goods 
shipped  on  board  a  Spanish  vessel,  by  the  order  of  Spanish  mer- 


THE  PACKET  DE  BILBOA.  541 

chants,  before  hostilities  with  Spain,  and  captured  December 
1796,  on  a  voyage  from  London  to  Corunna.    .    .    . 

Sir  W.  SCOTT  [LORD  STOWELL].  This  is  a  claim  of  a  peculiar 
nature  for  goods  sent  by  British  subjects  to  Spain,  shipped  be- 
fore hostilities,  during  the  time  of  that  situation  of  the  two 
countries,  of  which  it  was  unknown,  even  to  our  government, 
what  would  be  the  issue,  between  them.  There  appears  to  be  no 
ground  to  say,  that  this  contract  was  influenced  by  speculations 
on  the  prospect  of  a  war,  or  that  anything  has  been  specially 
done  to  avoid  the  risks  of  war.  It  is  sworn  in  the  affidavit  of 
the  claimant,  "That  this  is  the  constant  habit  and  practice  of 
this  trade ; ' '  whether  it  is  the  practice  of  the  Spanish  trade  gen- 
erally, or  only  the  particular  mode  of  these  individuals  in  car- 
rying on  commerce  together  is  not  material,  as  the  latter  would 
be  quite  sufficient  to  raise  the  subject  of  this  claim.  The  ques- 
tion is,  In  whom  is  the  legal  title  ?  Because,  if  I  should  find  that 
the  interest  was  in  the  Spanish  consignee,  I  must  then  condemn, 
and  leave  the  British  party  to  apply  to  the  Crown  for  that  grace 
and  favor  which  it  is  always  ready  to  shew;  the  property  being 
condemnable  to  the  Crown  as  taken  before  hostilities. 

The  statement  of  the  claim  sets  forth,  that  these  -goods  have 
not  been  paid  for  by  the  Spaniard; — that  would  go  but  little 
way, — that  alone  would  not  do;  there  must  be  many  cases  in 
which  British  merchants  suffer  from  capture,  by  our  own 
cruizers,  of  goods  shipped  for  foreign  account  before  the  break- 
ing out  of  hostilities.  It  goes  on  to  state,  "That,  according  to 
the  custom  of  the  trade,  a  credit  of  six,  nine,  or  twelve  months 
is  usually  given,  and  that  it  is  not  the  custom  to  draw  on  the 
consignee  till  the  arrival  of  the  goods ;  that  the  sea  risk  in  peace 
as  well  as  war  is  on  the  consignor,  that  he  insures,  and  has  no 
remedy  against  the  consignee  for  any  accident  that  happens 
during  the  voyage."  Under  these  circumstances,  in  whom  does 
the  property  reside?  The  ordinary  state  of  commerce  is,  that 
goods  ordered  and  delivered  to  the  master  are  considered  as  de- 
livered to  the  consignee,  whose  agent  the  master  is  in  this  re- 
spect; but  that  general  contract  of  the  law  may  be  varied  by 
special  agreement,  or  by  a  particular  prevailing  practice,  that 
presupposes  an  agreement  amongst  such  a  description  of  mer- 
chants. In  time  of  profound  peace  when  there  is  no  prospect 
of  approaching  war,  there  would  unquestionably  be  nothing  il- 
legal in  contracting,  that  the  whole  risk  should  fall  on  the  con- 


542      WAR  RIGHTS  AS  TO  PRIVATE  PROPERTY. 

signer,  till  the  goods  came  into  possession  of  the  consignee.  In 
time  of  peace  they  may  divide  their  risk  as  they  please,  and  no- 
body has  a  right  to  say  they  shall  not;  it  would  not  be  at  all 
illegal,  that  goods  not  shipped  in  time  of  war,  or  in  contempla- 
tion of  war,  should  be  at  the  risk  of  the  shipper.  In  time  of 
war  this  cannot  be  permitted,  for  it  would  at  once  put  an  end 
to  all  captures  at  sea;  the  risk  would  in  all  cases  be  laid  on  the 
consignor,  where  it  suited  the  purpose  of  protection;  on  every 
contemplation  of  a  war,  this  contrivance  would  be  practised  in 
all  consignments  from  neutral  ports  to  the  enemy's  country, 
to  the  manifest  defrauding  of  all  rights  of  capture;  it  is  there- 
fore considered  to  be  an  invalid  contract  in  time  of  war;  or,  to 
express  it  more  accurately,  it  is  a  contract  which,  if  made  in  war, 
has  this  effect ;  that  the  captor  has  a  right  to  seize  it  and  convert 
the  property  to  his  own  use;  for  he  having  all  the  rights  that 
belong  to  his  enemy,  is  authorised  to  have  his  taking  possession 
considered  as  equivalent  to  an  actual  delivery  to  his  enemy ;  and 
the  shipper  who  put  it  on  board  during  a  time  of  war,  must  be 
presumed  to  know  the  rule,  and  to  secure  himself  in  his  agree- 
ment with  the  consignee,  against  the  contingence  of  any  loss 
to  himself  that  can  arise  from  capture.  In  other  words,  he  is  a 
mere  insurer  against  sea  risk,  and  he  has  nothing  to  do  with  the 
case  of  capture,  the  loss  of  which  falls  entirely  on  the  consignee. 
If  the  consignee  refuses  payment,  and  throws  it  upon  the 
shipper,  the  shipper  must  be  supposed  to  have  guarded  his  own 
interests  against  that  hazard,  or  he  has  acted  improvidently  and 
without  caution. 

The  present  contract  is  not  of  this  sort ;  it  stands  as  a  lawful 
agreement,  being  made  whilst  there  was  neither  war  nor  pros- 
pect of  war.  The  goods  are  sent  at  the  risk  of  the  shipper:  If 
they  had  been  lost,  on  whom  would  the  loss  have  fallen  but  on 
him?  What  surer  test  of  property  can  there  be  than  this?  It 
is  the  true  criterion  of  property,  that,  if  you  are  the  person  on 
whom  the  loss  will  fall,  you  are  to  be  considered  as  the  propri- 
etor. The  bill  of  lading  very  much  favors  this  account.  The 
master  binds  himself  to  the  shipper,  "to  deliver  for  you  and  in 
your  name,"  by  which  it  is  to  be  understood  that  the  delivery 
had  not  been  made  to  the  master  for  the  consignee,  but  that  he 
was  to  make  the  delivery  in  the  name  of  the  shipper  to  the  con- 
signee, till  which  time  the  inference  is,  that  they  were  to  remain 
the  property  of  the  shipper :  as  to  the  payment  of  freight,  that  is 
not  material,  as  in  the  end  the  purchaser  must  necessarily  pay 


THE  PACKET  DE  BILBOA.  543 

the  carriage: — The  other  consideration,  Who  bears  the  loss? 
much  outweighs  that, — neither  does  the  case  put  shew  the  con- 
trary. The  case  put  is — supposing  Spain  and  England  both 
neutral,  and  that  these  goods  had  been  taken  by  the  French  and 
sold  to  great  profit,  to  whose  advantage  would  it  have  been? 
The  answer  is,  If  the  goods  were  to  continue  the  property  of 
the  shipper  till  delivery,  it  must  have  enured  to  his  benefit,  and 
not  that  of  the  consignee.  To  make  the  loss  fall  upon  the 
shipper  in  the  case  of  the  present  shipment,  would  be  harsh  in 
the  extreme.  He  ships  his  goods  in  the  ordinary  course  of  traffic, 
by  an  agreement  mutually  understood  between  the  parties,  and 
in  no  wdse  injurious  to  the  rights  of  any.  third  party;  an  event 
subsequently  happens  which  he  could  in  no  degree  provide 
against.  If  he  is  to  be  the  sufferer,  he  is  a  sufferer  without  no- 
tice, and  without  the  means  of  securing  himself;  he  was  not 
called  upon  to  know  that  the  injustice  of  the  other  party  would 
produce  a  war  before  the  delivery  of  his  goods :  The  consignee 
may  refuse  payment,  referring  to  the  terms  of  the  contract 
which  was  made  when  it  was  perfectly  lawful ;  and  under  what 
circumstances  and  on  what  principles  the  shipper  could  ever 
enforce  payment  against  the  consignee  is  not  easy  to  discover. 
The  goods  have  never  been  delivered  in  Spain ;  they  were  to 
have  been  at  the  risk  of  the  shipper  till  delivery,  and  this  under 
a  perfectly  fair  contract.  I  must  consider  the  property  to  reside 
still  in  the  English  merchant;  it  is  a  case  altogether  different 
from  other  cases  wThich  have  happened  on  this  subject  flagrante 
hello.  I  am  of  opinion  that,  on  all  just  considerations  of  owner- 
ship, the  legal  property  is  in  the  British  merchant,  that  the  loss 
must  have  fallen  on  the  shipper,  and  the  delivery  was  not  to 
have  been  made  till  the  last  stage  of  the  business,  till  they  had 
actually  arrived  in  Spain,  and  had  been  put  into  the  hands  of 
the  consignee;  and  therefore  I  shall  decree  restitution  of  the 
goods  to  the  shipper. 

On  prayer  that  the  captor's  expences  might  be  paid,  it  was 
answered  that  they  had  already  had  the  benefit  of  the  condemna- 
tion of  the  ship. 

Court. — I  think  there  has  been  a  great  service  performed  to 
the  shipper.  If  the  goods  had  not  been  captured,  they  would 
have  gone  into  the  possession  of  the  enemy.  The  captor  did 
right  in  bringing  the  question  before  the  Court,  and  he  ought 
by  no  means  to  be  a  loser. — I  shall  not  give  a  salvage,  but  shall 
direct  the  expences  of  the  captor  to  be  paid  out  of  the  proceeds. 


544      WAR  RIGHTS  AS  TO  PRIVATE  PROPERTY. 
THE  NEREIDE. 

SUPREME  COUET  OF  THE  UNITED  STATES.    1815. 
9  Cranch,  388. 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the 
district  of  New  York. 

[The  ship  Nereide,  the  property  of  a  British  subject,  was 
chartered  in  London  August  26,  1813,  by  Manuel  Pinto,  a  Span- 
ish citizen  residing  in  Buenos  Ayres,  for  a  voyage  from  London 
to  Buenos  Ayres  and  return.  The  ship  was  loaded  with  a  cargo 
belonging  in  part  to  British  and  in  part  to  Spanish  subjects. 
On  her  outward  voyage,  while  in  the  vicinity  of  Madeira,  the 
ship  was  captured  by  an  American  privateer,  and  brought  into 
the  port  of  New  York,  where  the  vessel  and  cargo  were  libelled 
and  condemned.  Pinto,  on  behalf  of  himself  and  other  Spanish 
subjects,  appealed  from  that  part  of  the  decision  which  applied 
to  so  much  of  the  cargo  as  was  their  property.] 

MARSHALL,  CH.  J.,  .  .  .  delivered  the  opinion  of  the 
court.  .  .  . 

2.  Does  the  treaty  between  Spain  and  the  United  States  sub- 
ject the  goods  of  either  party,  being  neutral,  to  condemnation 
as  enemy  property,  if  found  by  the  other  in  the  vessel  of  an 
enemy  ?  That  treaty  stipulates  that  neutral  bottoms  shall  make 
neutral  goods,  but  contains  no  stipulation  that  enemy  bottoms 
shall  communicate  the  hostile  character  to  the  cargo.  It  is  con- 
tended by  the  captors  that  the  two  principles  are  so  completely 
identified  that  the  stipulation  of  the  one  necessarily  includes  the 
other. 

Let  this  proposition  be  examined. 

The  rule  that  the  goods  of  an  enemy  found  in  the  vessel  of  a 
friend  are  prize  of  war,  and  that  the  goods  of  a  friend  found 
in  the  vessel  of  an  enemy  are  to  be  restored,  is  believed  to  be  a 
part  of  the  original  law  of  nations,  as  generally,  perhaps  univer- 
sally, acknowledged.  Certainly  it  has  been  fully  and  unequiv- 
ocally recognized  by  the  United  States.  This  rule  is  founded 
on  the  simple  and  intelligible  principle  that  war  gives  a  full 
right  to  capture  the  goods  of  an  enemy,  but  gives  no  right  to 
capture  the  goods  of  a  friend.  In  the  practical  application  of 
this  principle,  so  as  to  form  the  rule,  the  propositions  that  the 


THE  NEREIDE.  545 

neutral  flag  constitutes  no  protection  to  enemy  property,  and 
that  the  belligerent  flag  communicates  no  hostile  character  to 
neutral  property,  are  necessarily  admitted.  The  character  of 
the  property,  taken  distinctly  and  separately  from  all  other  con- 
siderations, depends  in  no  degree  upon  the  character  of  the 
vehicle  in  which  it  is  found. 

Many  nations  have  believed  it  to  be  their  interest  to  vary  this 
simple  and  natural  principle  of  public  law.  They  have  changed 
it  by  convention  between  themselves  as  far  as  they  have  believed 
it  to  be  for  their  advantage  to  change  it.  But  unless  there  be 
something  in  the  nature  of  the  rule  which  renders  its  parts  un- 
susceptible of  division,  nations  must  be  capable  of  dividing  it 
by  express  compact,  and  if  they  stipulate  either  that  the  neutral 
flag  shall  cover  enemy  goods,  or  that  the  enemy  flag  shall  infect 
friendly  goods,  there  would,  in  reason,  seem  to  be  no  necessity 
for  implying  a  distinct  stipulation  not  expressed  by  the  parties. 
Treaties  are  formed  upon  deliberate  reflection.  Diplomatic  men 
read  the  public  treaties  made  by  other  nations  and  cannot  be 
supposed  either  to  omit  or  insert  an  article,  common  in  public 
treaties,  without  being  aware  of  the  effect  of  such  omission  or 
insertion.  Neither  the  one  nor  the  other  is  to  be  ascribed  to  in- 
attention. And  if  an  omitted  article  be  not  necessarily  implied 
in  one  which  is  inserted,  the  subject  to  which  that  article  would 
apply  remains  under  the  ancient  rule.  That  the  stipulation  of 
immunity  to  enemy  goods  in  the  bottoms  of  one  of  the  parties 
being  neutral  does  not  imply  a  surrender  of  the  goods  of  that 
party  being  neutral,  if  found  in  the  vessel  of  an  enemy,  is  the 
proposition  of  the  counsel  for  the  claimant,  and  he  powerfully 
sustains  that  proposition  by  arguments  arising  from  the  nature 
'of  the  two  stipulations.  The  agreement  that  neutral  bottoms  shall 
make  neutral  goods  is,  he  very  justly  remarks,  a  concession  made 
by  the  belligerent  to  the  neutral.  It  enlarges  the  sphere  of  neu- 
tral commerce,  and  gives  to  the  neutral  flag  a  capacity  not  given 
to  it  by  the  law  of  nations. 

The  stipulation  which  subjects  neutral  property,  found  in  the 
bottom  of  an  enemy,  to  condemnation  as  prize  of  war,  is  a  con- 
cession made  by  the  neutral  to  the  belligerent.  It  narrows  the 
sphere  of  neutral  commerce,  and  takes  from  the  neutral  a  priv- 
ilege he  possessed  under  the  law  of  nations.  The  one  may  be, 
and  often  is,  exchanged  for  the  other.  But  it  may  be  the  interest 
and  the  will  of  both  parties  to  stipulate  the  one  without  the 
37  other;  and  if  it  be  their  interest,  or  their  will,  what  shall  prevent 


546      WAR  RIGHTS  AS  TO  PRIVATE  PROPERTY. 

its  accomplishment?  A  neutral  may  give  some  other  compensa- 
tion for  the  privilege  of  transporting  enemy  goods  in  safety,  or 
both  parties  may  find  an  interest  in  stipulating  for  this  priv- 
ilege, and  neither  may  be  disposed  to  make  to,  or  require  from, 
the  other  the  surrender  of  any  right  as  its  consideration.  What 
shall  restrain  independent  nations  from  making  such  a  compact  ? 
And  how  is  their  intention  to  be  communicated  to  each  other  or 
to  the  world  so  properly  as  by  the  compact  itself? 

If  reason  can  furnish  no  evidence  of  the  indissolubility  of  the 
two  maxims,  the  supporters  of  that  proposition  will  certainly 
derive  no  aid  from  the  history  of  their  progress  from  the  first 
attempts  at  their  introduction  to  the  present  moment. 

For  a  considerable  length  of  time  they  were  the  companions 
of  each  other — not  as  one  maxim  consisting  of  a  single  indivis- 
ible principle,  but  as  two  stipulations,  the  one,  in  the  view  of 
the  parties,  forming  a  natural  and  obvious  consideration  for  the 
other.  The  celebrated  compact  termed  the  armed  neutrality  at- 
tempted to  effect  by  force  a  great  revolution  in  the  law  of  na- 
tions. The  attempt  failed,  but  it  made  a  deep  and  lasting  im- 
pression on  public  sentiment.  The  character  of  this  effort  has 
been  accurately  stated  by  the  counsel  for  the  Claimants.  Its 
object  was  to  enlarge,  and  not  in  any  thing  to  diminish  the 
rights  of  neutrals.  The  great  powers,  parties  to  this  agreement, 
contended  for  the  principle,  that  free  ships  should  make  free 
goods;  but  not  for  the  converse  maxim;  so  far  were  they  from 
supposing  the  one  to  follow  as  a  corollary  from  the  other,  that 
the  contrary  opinion  was  openly  and  distinctly  avowed.  The 
king  of  Prussia  declared  his  expectation  that  in  future  neutral 
bottoms  would  protect  the  goods  of  an  enemy,  and  that  neutral 
goods  would  be  safe  in  an  enemy  bottom.  There  is  no  reason  to 
believe  that  this  opinion  was  not  common  to  those  powers  who 
acceded  to  the  principles  of  the  armed  neutrality. 

From  that  epoch  to  the  present,  in  the  various  treaties  which 
have  been  formed,  some  contain  no  article  on  the  subject  and 
consequently  leave  the  ancient  rule  in  full  force.  Some  stipulate 
that  the  character  of  the  cargo  shall  depend  upon  the  flag,  some 
that  the  neutral  flag  shall  protect  the  goods  of  an  enemy,  some 
that  the  goods  of  a  neutral  in  the  vessel  of  a  friend  shall  be  prize 
of  war,  and  some  that  the  goods  of  an  enemy  in  a  neutral  bottom 
shall  be  safe,  and  that  friendly  goods  in  the  bottom  of  an  enemy 
shall  also  be  sa|e. 

This  review  which  was  taken  with  minute  accuracy  at  the  bar, 


THE  NERBIDE.  547 

certainly  demonstrates  that  in  public  opinion  no  two  principles 
are  more  distinct  and  independent  of  each  other  than  the  two 
which  have  been  contended  to  be  inseparable. 

Do  the  United  States  understand  this  subject  differently  from 
other  nations?  It  is  certainly  not  from  our  treaties  that  this 
opinion  can  be  sustained.  The  United  States  have  in  some 
treaties  stipulated  for  both  principles,  in  some  for  one  of  them 
only,  in  some  that  neutral  bottoms  shall  make  neutral  goods  and 
that  friendly  goods  shall  be  safe  in  the  bottom  of  an  enemy.  It 
is  therefore  clearly  understood  in  the  United  States,  so  far  as 
an  opinion  can  be  formed  on  their  treaties,  that  the  one  prin- 
ciple is  totally  independent  of  the  other.  They  have  stipulated 
expressly  for  their  separation,  and  they  have  sometimes  stip- 
ulated for  the  one  without  the  other. 

But  in  a  correspondence  between  the  secretary  of  state  of  the 
United  States  and  the  minister  of  the  French  republic  in  1793, 
Prussia  is  enumerated  among  those  nations  with  whom  the 
United  States  had  made  a  treaty  adopting  the  entire  principle 
that  the  character  of  the  cargo  shall  be  determined  by  the  char- 
acter of  the  flag. 

Not  being  in  possession  of  this  correspondence  the  Court  is 
unable  to  examine  the  construction  it  has  received.  It  has  not 
deferred  this  opinion  on  that  account,  because  the  point  in  con- 
troversy at  that  time  was  the  obligation  imposed  on  the  United 
States  to  protect  belligerent  property  in  their  vessels,  not  the 
liability  of  their  property  to  capture  if  found  in  the  vessel  of 
a  belligerent.  To  this  point  the  whole  attention  of  the  writer 
was  directed,  and  it  is  not  wonderful  that  in  mentioning  inci- 
dentally the  treaty  with  Prussia  which  contains  the  principle 
that  free  bottoms  made  free  goods,  it  should  have  escaped  his 
recollection  that  it  did  not  contain  the  converse  of  the  maxim. 
On  the  talents  and  virtues  which  adorned  the  cabinet  of  that 
day,  on  the  patient  fortitude  with  which  it  resisted  the  intem- 
perate violence  with  which  it  was  assailed,  on  the  firmness  with 
which  it  maintained  those  principles  which  its  sense  of  duty 
prescribed,  on  the  wisdom  of  the  rules  it  adopted,  no  panegyric 
has  been  pronounced  at  the  bar  in  which  the  best  judgment  of 
this  Court  does  not  concur.  But  this  respectful  deference  may 
well  comport  with  the  opinion,  that  an  argument  incidentally 
brought  forward  by  way  of  illustration,  is  not  such  full  author- 
ity as  a  decision  directly  on  the  point  might  have  been. 

3.     The  third  point  made  by  the  captors  is,  that  whatever 


548      WAR  RIGHTS  AS  TO  PRIVATE  PROPERTY. 

construction  might  be  put  on  our  treaty  with  Spain,  considered 
as  an  independent  measure,  the  ordinances  of  that  government 
would  subject  American  property,  under  similar  circumstances, 
to  confiscation,  and  therefore  the  property,  claimed  by  Spanish 
subjects  in  this  case,  ought  to  be  condemned  as  prize  of  war. 

The  ordinances  themselves  have  not  been  produced,  nor  has 
the  Court  received  such  information  respecting  them  as  would 
enable  it  to  decide  certainly  either  on  their  permanent  existence, 
or  on  their  application  to  the  United  States.  But  be  this  as  it 
may,  the  Court  is  decidely  of  opinion  that  reciprocating  to  the 
subjects  of  a  nation,  or  retaliating  on  them,  its  unjust  proceed- 
ings towards  our  citizens,  is  a  political  not  a  legal  measure.  It 
is  for  the  consideration  of  the  government  not  of  its  Courts. 
.  .  .  If  it  be  the  will  of  the  government  to  apply  to  Spain 
any  rule  respecting  captures  which  Spain  is  supposed  to  apply 
to  us,  the  government  will  manifest  that  will  by  passing  an  act 
for  the  purpose.  Till  such  an  act  be  passed,  the  Court  is  bound 
by  the  law  of  nations  which  is  a  part  of  the  law  of  the  land. 

Thus  far  the  opinion  of  the  Court  has  been  formed  without 
much  difficulty.  Although  the  principles,  asserted  by  the  coun- 
sel, have  been  sustained  on  both  sides  with  great  strength  of 
argument,  they  have  been  found  on  examination  to  be  simple 
and  clear  in  themselves.  Stripped  of  the  imposing  garb  in 
which  they  have  been  presented  to  the  Court,  they  have  no  in- 
trinsic intricacy  which  should  perplex  the  understanding. 

The  remaining  point  is  of  a  different  character.  Belligerent 
rights  and  neutral  privileges  are  set  in  array  against  each  other. 
Their  respective  pretensions,  if  not  actually  intermixed,  come 
into  close  contact,  and  the  line  of  partition  is  not  so  distinctly 
marked  as  to  be  clearly  discernible.  It  is  impossible  to  declare 
in  favor  of  either,  without  hearing,  from  the  other,  objections 
which  it  is  difficult  to  answer  and  arguments,  which  it  is  not 
easy  to  refute.  The  Court  has  given  to  this  subject  a  patient 
investigation,  and  has  endeavored  to  avail  itself  of  all  the  aid 
which  has  been  furnished  by  the  bar.  The  result,  if  not  com- 
pletely satisfactory  even  to  ourselves,  is  one  from  which  it  is 
believed  we  should  not  depart  were  further  time  allowed  for 
deliberation. 

4.  Has  the  conduct  of  Manuel  Pinto  and  of  the  Nereide  been 
such  as  to  impress  the  hostile  character  on  that  part  of  the  cargo 
which  was  in  fact  neutral  ? 


[E  I 


THE  NEREIDE.  549 

In  considering  this  question  the  Court  has  examined  separate- 
ly the  parts  which  compose  it. 

The  vessel  was  armed,  was  the  property  of  an  enemy,  and 
made  resistance.  How  do  these  facts  affect  the  claim? 

Had  the  vessel  been  armed  by  Pinto,  that  fact  would  certainly 
have  consituted  an  important  feature  in  the  case.  But  the  Court 
can  perceive  no  reason  for  believing  she  was  armed  by  him.  He 
chartered,  it  is  true,  the  whole  vessel,  and  that  he  might  as  right- 
fully do  as  contract  for  her  partially ;  but  there  is  no  reason  to 
believe  that  he  was  instrumental  in  arming  her.  .  .  . 

Whether  the  resistance,  which  was  actually  made,  is  in  any 
degree  imputable  to  Mr.  Pinto,  is  a  question  of  still  more  im- 
portance. 

It  has  been  argued  that  he  had  the  whole  ship,  and  that,  there- 
fore, the  resistance  was  his  resistance.  .  .  .  His  control  over 
the  ship  began  and  ended  with  putting  the  cargo  on  board.  He 
does  not  appear  ever  to  have  exercised  any  authority  in  the  man- 
agement of  the  ship.  So  far  from  exercising  any  during  the 
battle,  he  went  into  the  cabin  where  he  remained  till  the  con- 
flict was  over.  .  .  . 

The  next  point  to  be  considered  is  the  right  ef  a  neutral  to 
place  his  goods  on  board  an  armed  belligerent  merchantman. 

That  a  neutral  may  lawfully  put  his  goods  on  board  a  bellig- 
erent ship  for  conveyance  on  the  ocean,  is  universally  recognized 
as  the  original  rule  of  the  law  of  nations.  It  is,  as  has  already 
been  stated,  founded  on  the  plain  and  simple  principle  that  the 
property  of  a  friend  remains  his  property  wherever  it  may  be 
found.  "Since  it  is  not,"  says  Vattel,  "the  place  where  a  thing 
is  which  determines  the  nature  of  that  thing,  but  the  character 
of  the  person  to  whom  it  belongs,  things  belonging  to  neutral 
persons  which  happen  to  be  in  an  enemy's  country,  or  on  board 
an  enemy's  ships,  are  to  be  distinguished  from  those  which  be- 
long to  the  enemy. ' ' 

Bynkershoek  lays  down  the  same  principles  in  terms  equally 
explicit;  and  in  terms  entitled  to  the  more  consideration,  be- 
cause he  enters  into  the  enquiry  whether  a  knowledge  of  the  hos- 
tile character  of  the  vessel  can  affect  the  owner  of  the  goods. 

The  same  principle  is  laid  down  by  other  writers  on  the  same 
subject,  and  is  believed  to  be  contradicted  by  none.  It  is  true 
there  were  some  old  ordinances  of  France  declaring  that  a  hos- 
tile vessel  or  cargo  should  expose  both  to  condemnation.  But 
these  ordinances  have  never  constituted  a  rule  of  public  law. 


550      WAR  RIGHTS  AS  TO  PRIVATE  PROPERTY. 

It  is  deemed  of  much  importance  that  the  rule  is  universally 
laid  down  in  terms  which  comprehend  an  armed  as  well  as  an 
unarmed  vessel;  and  that  armed  vessels  have  never  been  ex- 
cepted  from  it.  Bynkershoek,  in  discussing  a  question  suggest- 
ing an  exception,  with  his  mind  directed  to  hostilities,  does  not 
hint  that  this  privilege  is  confined  to  unarmed  merchantmen. 

In  point  of  fact,  it  is  believed  that  a  belligerent  merchant 
vessel  rarely  sails  unarmed,  so  that  this  exception  from  the  rule 
would  be  greater  than  the  rule  itself.  At  all  events,  the  number 
of  those  who  are  armed  and  who  sail  under  convoy,  is  too  great 
not  to  have  attracted Hhe  attention  of  writers  on  public  law; 
and  this  exception  to  their  broad  general  rule,  if  it  existed, 
would  certainly  be  found  in  some  of  their  works.  It  would  be 
strange  if  a  rule  laid  down,  with  a  view  to  war,  in  such  broad 
terms  as  to  have  universal  application,  should  be  so  construed 
as  to  exclude  from  its  operation  almost  every  case  for  which  it 
purports  to  provide,  and  yet  that  not  a  dictum  should  be  found 
in  the  books  pointing  to  such  construction. 

The  antiquity  of  the  rule  is  certainly  not  unworthy  of  consid- 
eration. It  is  to  be  traced  back  to  the  time  when  almost  every 
merchantman  was  in  a  condition  of  self-defence,  and  the  imple- 
ments of  war  were  so  light  and  so  cheap  that  scarcely  any  would 
sail  without  them. 

A  belligerent  has  a  perfect  right  to  arm  in  his  own  defence; 
and  a  neutral  has  a  perfect  right  to  transport  his  goods  in  a 
belligerent  vessel.  These  rights  do  not  interfere  with  each  other. 
The  neutral  has  no  control  over  the  belligerent  right  to  arm — 
ought  he  to  be  accountable  for  the  exercise  of  it  ? 

By  placing  neutral  property  in  a  belligerent  ship,  that  prop- 
erty, according  to  the  positive  rules  of  law,  does  not  cease  to  be 
neutral.  Why  should  it  be  changed  by  the  exercise  of  a  bellig- 
erent right,  universally  acknowledged  and  in  common  use  when 
the  rule  was  laid  down,  and  over  which  the  neutral  had  no 
control ? 

The  belligerent  answers,  that  by  arming  his  rights  are  im- 
paired. By  placing  his  goods  under  the  guns  of  an  enemy,  the 
neutral  has  taken  part  with  the  enemy  and  assumed  the  hostile 
character. 

Previous  to  that  examination  which  the  Court  has  been  able 
to  make  of  the  reasoning  by  which  this  proposition  is  sustained, 
one  remark  will  be  made  which  applies  to  a  great  part  of  it.  The 
argument  which,  taken  in  its  fair  sense,  would  prove  that  it  is 


THE  NEREIDE.  551 

unlawful  to  deposit  goods  for  transportation  in  the  vessel  of  an 
enemy  generally,  however  imposing  its  form,  must  be  unsound, 
because  it  is  in  contradiction  to  acknowledged  law. 

It  is  said  that  by  depositing  goods  on  board  an  armed  bellig- 
erent the  right  of  search  may  be  impaired,  perhaps  defeated. 

What  is  this  right  of  search?  Is  it  a  substantive  and  inde- 
pendent right  wantonly,  and  in  the  pride  of  power,  to  vex  and 
harass  neutral  commerce,  because  there  is  a  capacity  to  do  so? 
or  to  indulge  the  idle  and  mischievous  curiosity  of  looking  into 
neutral  trade  ?  or  the  assumption  of  a  right  to  control  it  ?  If  it 
be  such  a  substantive  and  independent  right,  it  would  be  better 
that  cargoes  should  be  inspected  in  port  before  the  sailing  of  the 
vessel,  or  that  belligerent  licenses  should  be  procured.  But  this 
is  not  its  character. 

Belligerents  have  a  full  and  perfect  right  to  capture  enemy 
goods  and  articles  going  to  their  enemy  which  are  contraband 
of  war.  To  the  exercise  of  that  right  the  right  of  search  is  es- 
sential. It  is  a  mean  justified  by  the  end.  It  has  been  truly 
denominated  a  right  growing  out  of,  and  ancillary  to  the  greater 
right  of  capture.  Where  this  greater  right  may  be  legally  exer- 
cised without  search,  the  right  of  search  can  never  arise  or  come 
into  question. 

But  it  is  said  that  the  exercise  of  this  right  may  be  prevented 
by  the  inability  of  the  party  claiming  it  to  capture  the  bellig- 
erent carrier  of  neutral  property. 

And  what  injury  results  from  this  circumstance?  If  the 
property  be  neutral,  what  mischief  is  done  by  its  escaping  a 
search?  In  so  doing  there  is  no  sin  even  as  against  the  bellig- 
erent, if  it  can  be  effected  by  lawful  means.  The  neutral  cannot 
justify  the  use  of  force  or  fraud,  but  if  by  means,  lawful  in 
themselves,  he  can  escape  this  vexatious  procedure,  he  may  cer- 
tainly employ  them. 

To  the  argument  that  by  placing  his  goods  in  the  vessel  of  an 
armed  enemy,  he  connects  himself  with  that  enemy  and  assumes 
the  hostile  character;  it  is  answered  that  no  such  connexion 
exists. 

The  object  of  the  neutral  is  the  transportation  of  his  goods. 
His  connexion  with  the  vessel  which  transports  them  is  the  same, 
whether  that  vessel  be  armed  or  unarmed.  The  act  of  arming 
is  not  his — it  is  the  act  of  a  party  who  has  a  right  to  do  so. 
He  meddles  not  with  the  armament  nor  with  the  war.  Whether 
his  goods  were  on  board  or  not,  the  vessel  would  be  armed  and 


552      WAR  RIGHTS  AS  TO  PRIVATE  PROPERTY. 

would  sail.  His  goods  do  not  contribute  to  the  armament  t'ur- 
ther  than  the  freight  he  pays,  and  freight  he  would  pay  were 
the  vessel  unarmed. 

It  is  difficult  to  perceive  in  this  argument  anything  which 
does  not  also  apply  to  an  unarmed  vessel.  In  both  instances  it 
is  the  right  and  the  duty  of  the  carrier  to  avoid  capture  and  to 
prevent  a  search.  There  is  no  difference  except  in  the  degree  of 
capacity  to  carry  this  duty  into  effect.  The  argument  would 
operate  against  the  rule  which  permits  the  neutral  merchant  to 
employ  a  belligerent  vessel  without  imparting  to  his  goods  the 
belligerent  character. 

The  argument  respecting  resistance  stands  on  the  same  ground 
with  that  which  respects  arming.  Both  are  lawful.  Neither  of 
them  is  chargeable  to  the  goods  or  their  owner,  where  he  has 
taken  no  part  in  it.  They  are  incidents  to  the  character  of  the 
vessel ;  and  may  always  occur  where  the  carrier  is  belligerent. 

It  is  remarkable  that  no  express  authority  on  either  side  of 
this  question  can  be  found  in  the  books.  A  few  scanty  materials, 
made  up  of  inferences  from  cases  depending  on  other  principles, 
have  been  gleaned  from  the  books  and  employed  by  both  parties 
They  are  certainly  not  decisive  for  or  against  either.  i 

The  celebrated  case  of  the  Swedish  convoy  [The  Maria  (1799), 
1  C.  Robinson,  340]  has  been  pressed  into  the  service.  But  that 
case  decided  no  more  than  this,  that  a  neutral  may  arm,  but  can- 
not by  force  resist  a  search.  The  reasoning  of  the  judge  on  that 
occasion 'would  seem  to  indicate  that  the  resistance  condemned 
the  cargo,  because  it  was  unlawful.  It  has  been  inferred  on  the 
one  side  that  the  goods  would  be  infected  by  the  resistance  of 
the  ship,  and  on  the  other  that  a  resistance  which  is  lawful,  and 
is  not  produced  by  the  goods,  will  not  change  their  character. 

The  case  of  the  Catherine  Elizabeth  approaches  more  nearly 
to  that  of  the  Nereide,  because  in  that  case  as  in  this  there  were 
neutral  goods  and  a  belligerent  ship.  It  was  certainly  a  case, 
not  of  resistance,  but  of  an  attempt  by  a  part  of  the  crew  to 
seize  the  capturing  vessel.  Between  such  an  attempt  and  an 
attempt  to  take  the  same  vessel  previous  to  capture,  there  does 
not  seem  to  be  a  total  dissimilitude.  But  it  is  the  reasoning  of 
the  judge  and  not  his  decision,  of  which  the  Claimants  would 
avail  themselves.  He  distinguishes  between  the  effect  which  the 
employment  of  force  by  a  belligerent  owner  or  by  a  neutral 
owner  would  have  on  neutral  goods.  The  first  is  lawful,  the  last 
•unlawful.  The  belligerent  owner  violates  no  duty.  He  is  held 


THE  NEREIDE.  553 

by  force  and  may  escape  if  he  can.  From  the  marginal  note  it 
appears  that  the  reporter  understood  this  case  to  decide  in  prin- 
ciple that  resistance  by  a  belligerent  vessel  would  not  confiscate 
the  cargo.  It  is  only  in  a  case  without  express  authority  that 
such  materials  can  be  relied  on. 

If  the  neutral  character  of  the  goods  is  forfeited  by  the  resist- 
ance of  the  belligerent  vessel,  why  is  not  the  neutral  character 
of  the  passengers  forfeited  by  the  same  cause  ?  The  master  and 
crew  are  prisoners  of  war,  why  are  not  those  passengers  who  did 
not  engage  in  the  conflict  also  prisoners?  That  they  are  not 
would  seem  to  the  Court  to  afford  a  strong  argument  in  favor 
of  the  goods.  The  law  would  operate  in  the  same  manner  on 
both. 

It  cannot  escape  observation,  that  in  argument  the  neutral 
freighter  has  been  continually  represented  as  arming  the  Nereide 
and  impelling  her  to  hostility.  He  is  represented  as  drawing 
forth  and  guiding  her  warlike  energies.  The  Court  does  not  so 
understand  the  case.  The  Nereide  was  armed,  governed,  and 
conducted  by  belligerents.  With  her  force,  or  her  conduct,  the 
neutral  shippers  had  no  concern.  They  deposited  their  goods 
on  board  the  vessel,  and  stipulated  for  their  direct  transporta- 
tion to  Buenos  Ayres.  It  is  true  that  on  her  passage  she  had  a 
right  to  defend  herself,  and  might  have  captured  an  assailing 
vessel ;  but  to  search  for  the  enemy  would  have  been  a  violation 
of  the  charter  party  and  of  her  duty. 

With  a  pencil  dipped  in  the  most  vivid  colors,  and  guided  by 
the  hand  of  a  master,  a  splendid  portrait  has  been  drawn  ex- 
hibiting this  vessel  and  her  freighter  as  forming  a  single  figure, 
composed  of  the  most  discordant  materials,  of  peace  and  war. 
So  exquisite  was  the  skill  of  the  artist,  so  dazzling  the  garb  in 
which  the  figure  was  presented,  that  it  required  the  exercise  of 
that  cold  investigating  faculty  which  ought  always  to  belong  to 
those  who  sit  on  this  bench,  to  discover  its  only  imperfection ; 
its  want  of  resemblance. 

The  Nereide  has  not  that  centaur-like  appearance  which  has 
been  ascribed  to  her.  She  does  not  rove  over  the  ocean  hurling 
the  thunders  of  war  while  sheltered  by  the  olive  branch  of  peace. 
She  is  not  composed  in  part  of  the  neutral  character  of  Mr. 
Pinto,  and  in  part  of  the  hostile  character  of  her  owner.  .She 
is  an  open  and  declared  belligerent;  claiming  all  the  rights,  and 
subject  to  all  the  dangers  of  the  belligerent  character.  She  con- 
veys neutral  property  which  does  not  engage  in  her  warlike 


554      WAR  RIGHTS  AS  TO  PRIVATE  PROPERTY. 

equipments,  or  in  any  employment  she  may  make  of  them; 
which  is  put  on  board  solely  for  the  purpose  of  transportation, 
and  which  encounters  the  hazard  incident  to  its  situation ;  the 
hazard  of  being  taken  into  port,  and  obliged  to  seek  another 
conveyance  should  its  carrier  be  captured. 

In  this  it  is  the  opinion  of  the  majority  of  the  Court  there  is 
nothing  unlawful.  The  characters  of  the  vessel  and  cargo  re- 
main as  distinct  in  this  as  in  any  other  case.  The  sentence, 
therefore,  of  the  Circuit  Court  must  be  reversed,  and  the  prop- 
erty claimed  by  Manuel  Pinto  for  himself  and  his  partners,  and 
for  those  other  Spaniards  for  whom  he  has  claimed,  be  restored, 
and  the  libel  as  to  that  property,  be  dismissed. 

[MR.  JUSTICE  JOHNSON  delivered  a  concurring  opinion,  and 
MR.  JUSTICE  STORY,  for  himself  and  one  other,  delivered  a  dis- 
senting opinion.] 


THE  MIRAMICHI. 

ADMIRALTY  DIVISION    (IN  PRIZE)    OF  THE  HIGH  COUBT  OF  JUSTICE  OF 

ENGLAND.     1914. 
Law  Reports   [1915]   P.  71. 

[In  June,  1914,  an  American  firm  contracted  to  sell  16,000 
bushels  of  wheat  to  certain  firms  in  Germany.  The  wheat  was 
loaded  upon  the  British  ship  Miramichi  at  Galveston,  Texas,  in 
July,  1914.  The  whole  transaction  was  in  entire  innocence  of 
any  anticipation  of  war.  The  shippers  obtained  the  bill  of  lad- 
ing and  drew  a  bill  of  exchange  upon  the  buyers  which  was 
discounted  by  the  Guaranty  Trust  Co.  of  New  York,  to  whom 
the  sellers  delivered  the  bill  of  lading,  which  was  to  be  delivered 
to  the  buyer  on  payment  of  the  bill  of  exchange.  En  route  to 
Rotterdam,  the  .owners  of  the  vessel  ordered  her  to  put  into  a 
British  port  because  of  the  outbreak  of  war.  While  in  a  British 
port  the  cargo  was  seized  as  prize.  The  bill  of  exchange  was  pre- 
sented to  the  buyers,  who  refused  to  accept  it  or  to  pay  the  sum 
due.  The  sellers  and  the  Guaranty  Trust  Co.  appear  as  claim- 
ants and  base  their  argument  on  the  ground  that  the  cargo  is 
neutral  property.] 

SIR  SAMUEL  EVANS,  PRESIDENT.     .    .    .    The  question  of  law 


THE  MIRAMICHI.  555 

>  .  .  is,  was  the  cargo  on  September  1  subject  to  seizure  or 
capture  by  or  on  behalf  of  the  Crown,  as  droits  of  admiralty 
or  as  prize  ? 

Before  this  question  is  dealt  with,  I  desire  to  point  out,  and 
to  emphasize,  that  nothing  which  I  shall  say  in  this  case  is  ap- 
plicable to  capture  or  seizure  at  sea  or  in  port  of  any  property 
dealt  with  during  the  war,  or  in  anticipation  of  the  war.  Ques- 
tions relating  to  such  property  are  on  an  entirely  different  foot- 
ing from  those  relating  to  transactions  initiated  during  the  hap- 
pier times  of  peace.  The  former  are  determined  largely  or 
mainly  upon  considerations  of  the  rights  of  belligerents  and  of 
attempts  to  defeat  such  rights.  .  .  . 

In  the  case  now  before  the  Court  there  is  no  place  for  any  idea 
of  an  attempt  to  defeat  the  rights  of  this  country  as  a  bellig- 
erent ;  and  the  case  has  to  be  determined  in  accordance  with  the 
principles  by  which  rights  of  property  are  ascertained  by  our 
law  in  time  of  peace.  .  .  . 

Very  difficult  questions  often  arise  at  law  as  to  when  the  prop- 
erty in  goods  carried  by  sea  is  transferred,  or  vests;  and  at 
whose  risk  goods  are  at  a  particular  time,  or  who  suffers  by  their 
loss.  These  are  the  kind  of  questions  which  are  often  brushed 
aside  in  the  Prize  Court  when  the  transactions  in  which  they  are 
involved  take  place  during  war  or  were  embarked  in  when  war 
was  imminent  or  anticipated.  But  where,  as  in  the  present  case, 
all  the  material  parts  of  the  business  transaction  took  place  bona, 
fide  during  peace,  and  it  becomes  necessary  to  decide  questions 
of  property,  I  hold  that  the  law  to  be  applied  is  the  ordinary 
municipal  law  governing  contracts  for  the  sale  and  purchase  of 
goods. 

Where  goods  are  contracted  for  to  be  sold  and  are  shipped 
during  peace  without  any  anticipation  of  imminent  war,  and  are 
seized  or  captured  afloat  after  war  has  supervened,  the  cardinal 
principle  is,  in  my  opinion,  that  they  are  not  subject  to  seizure 
or  capture  unless  under  the  contract  the  property  in  the  goods 
has  by  that  time  passed  to  the  enemy.  It  may  be  that  the  ele- 
ment of  risk  may  legitimately  enter  into  the  consideration  of 
the  question  whether  the  property  has  passed  or  has  become 
transferred.  But  the  incidence  of  risk  or  loss  is  not  by  any 
means  the  determining  factor  of  property  or  ownership.  .  .  . 
The  main  determining  factor  is  whether,  according  to  the  inten- 
tion of  seller  and  buyer,  the  property  had  passed. 

The   question  which  governs  this  case,   therefore,   is,   whose 


556      WAR  RIGHTS  AS  TO  PRIVATE  PROPERTY. 

property  were  the  goods  at  the  time  of  seizure  ?    .    .    . 

In  my  opinion,  the  result  of  the  many  decisions  ...  is 
that,  in  the  circumstances  of  the  present  case,  the  goods  had 
not,  at  the  time  of  seizure,  passed  to  the  buyers;  but  that  the 
sellers  had  reserved  a  right  of  disposal  or  a  jus  disponendi  over 
them,  and  that  the  goods  still  remained  their  property,  and 
would  so  remain  until  the  shipping  documents  had  been  ten- 
dered to  and  taken  over  by  the  buyer,  and  the  bill  of  exchange 
for  the  price  had  been  paid. 

It  follows  that  the  goods  seized  were  the  property  of  the 
American  claimants,  and  were  not  subject  to  seizure;  the  Court 
decrees  accordingly,  and  orders  the  goods  to  be  released  to  the 
claimants. 


THE  ROUMANIAN. 

JUDICIAL  COMMITTE  OF  THE  PRIVY  COUNCIL  OF  GREAT  BRITAIN.    1915. 
Law  Reports  [1916]  1  A.  C.  124. 

Appeal  from  a  decision  of  the  Prize  Court  (England),  De- 
cember 7,  1914;  reported  [1915]  P.  26.  .  .  . 

[At  the  outbreak  of  war  between  Great  Britain  and  Germany, 
the  Roumanian,  a  British  ship,  was  on  the  way  from  Port  Ar- 
thur, Texas,  to  Hamburg  Math  a  cargo  of  oil  belonging  to  a 
German  company.  On  reaching  the  English  Channel  the  vessel 
was  diverted  by  her  owners  to  a  British  port  where  the  oil  was 
discharged  into  tanks  on  shore.  "When  the  larger  part  of  it  had 
been  discharged,  the  whole  of  it  was  seized  as  prize,  and  the 
seizure  was  sustained  as  lawful  by  Sir  Samuel  Evans.  The 
claimants  appealed.] 

LORD  PARKER  OF  WADDINGTON.  .  .  .  Three  points  were 
raised  by  counsel  for  the  appellants.  They  contended,  first,  that, 
so  far  as  the  petroleum  was  not  afloat  at  the  date  of  seizure,  the 
Prize  Court  had  no  jurisdiction ;  secondly,  that  even  if  the  Prize 
Court  had  jurisdiction,  it  ought  not  to  have  condemned  the 
petroleum  so  far  as  at  the  date  of  seizure  it  was  warehoused  in 
the  tanks  of  the  British  Petroleum  Company,  Limited,  and  no 
longer  on  board  the  Roumanian;  and.  thirdly,  that  enemy  goods 


THE  ROUMANIAN.  557 

on  British  ships  at  the  commencement  of  hostilities  either  never 
were,  or,  at  any  rate,  have  long  ceased  to  be,  liable  to  seizure 
at  all.  Obviously,  if  the  last  point  is  correct,  it  is  unnecessary 
to  decide  the  first  two  points.  Their  Lordships,  therefore,  think 
it  desirable  to  deal  with  it  at  once. 

The  contention  that  enemy  goods  on  British  ships  at  the  com- 
mencement of  hostilities  are  not  the  subject  of  maritime  prize 
was  not  argued  before  the  President  in  the  present  case.  It  had 
already  been  decided  by  him  in  The  Miramichi,  [1915]  P.  7J. 
Their  Lordships  have  carefully  considered  the  judgment  of  the 
President  in  the  last-mentioned  case,  and  entirely  agree  with  it. 
The  appellants'  counsel  based  their  contention  on  three  argu- 
ments. First,  they  relied  on  the  dearth  of  reported  cases  in 
which  enemy  goods  on  British  ships  at  the  commencement  of 
hostilities  have  been  condemned  as  prize,  emphasizing  the, fact 
that  in  the  case  of  The  Juno,  112  L.  T.  471,  no  authority  could 
be  found  for  the  right  of  the  master  of  a  British  ship  on  which 
enemy  goods  were  seized  as  prize  to  compensation  in  lieu  of 
freight,  though  if  such  goods  were  properly  the  subject  of  prize 
the  question  must  constantly  have  arisen.  Secondly,  they  laid 
stress  on  certain  general  statements  contained  in  text-books  on 
international  law  as  to  what  enemy  goods  can  now  be  seized  as 
prize.  Thirdly,  they  called  in  aid  that  part  of  the  Declaration 
of  Paris  which  affords  protection  to  enemy  goods  other  than 
contraband  on  neutral  ships  and  the  principle  underlying  or 
supposed  to  underlie  such  Declaration. 

With  regard  to  the  dearth  of  reported  decisions,  it  is  to  be 
observed  that  the  plainer  a  proposition  of  law,  the  more  difficult 
It  sometimes  is  to  find  a  decision  actually  in  point.  Counsel  are 
not  in  the  habit  of  advancing  arguments  which  they  think  un- 
tenable, nor  as  a  general  rule  do  cases  in  which  no  point  of  law 
is  raised  and  decided  find  their  way  into  law  reports.  If,  on 
the  one  hand,  it  be  difficult  to  find  a  case  in  which  enemy  goods 
on  British  ships  at  the  commencement  of  hostilities  have  been 
condemned  as  prize,  it  is,  on  the  other  hand,  quite  certain  that 
no  case  can  be  found  in  which  such  goods  have  been  held  im- 
mune from  seizure.  Further,  inasmuch  as  by  international 
comity  British  Prize  Courts  have  in  general  extended  to  neutrals 
the  privileges  enjoyed  by  British  subjects,  we  should,  if  this 
contention  be  correct,  expect  to  find  that  enemy  goods  on  neu- 
tral ships  at  the  commencement  of  hostilities  were  alike  immune 
from  seizure.  Their  Lordships  have  been  unable  to  find  any  au- 


556      WAR  RIGHTS  AS  TO  PRIVATE  PROPERTY. 

thority  which  gives  colour  to  this  suggestion.  There  appears, 
indeed,  to  be  no  case  in  which  for  this  purpose  any  distinction 
has  been  drawn  between  goods  on  board  a  neutral  vessel  at  the 
outbreak  of  hostilities  and  goods  embarked  on  a  neutral  vessel 
during  the  course  of  a  war.  Their  Lordships,  therefore,  are  not 
impressed  by  the  argument  based  on  the  dearth  of  actual  deci- 
sions on  the  point.  .  .  . 

With  regard  to  the  general  statements  contained  in  text-booka 
on  international  law,  it  is  to  be  observed  that  none  of  those 
cited  in  support  of  the  appellants'  contention  appears  to  have 
been  based  on  any  discussion  of  the  point  in  issue.  On  the  con- 
trary, they  are  for  the  most  part  based  on  a  discussion  of  the 
effect  of  the  Declaration  of  Paris.  Their  Lordships  do  not  think 
that  any  useful  purpose  would  be  served  by  examining  these 
statements  in  detail.  They  will  take  one  example  only,  that 
cited  from  Westlake's  International  Law,  part  2,  p.  145.  The 

.author  has  been  discussing  the  effect  of  the  Declaration  of  Paris, 
and  sums  up  as  follows:  "We  may  therefore  conclude  that 
enemy  ships  and  enemy  goods  on  board  them  are  now  by  inter- 

'  national  law  the  only  enemy  property  which  as  such  is  captur- 
able  at  sea."  In  their  Lordships'  opinion  the  meaning  of  such 
statements  must  be  judged  by  the  context.  They  cannot  be 
taken  apart  from  the  context  as  intended  to  be  an  exhaustive 
definition  of  what  is  or  is  not  now  the  subject  of  maritime  prize. 
It  might  just  as  well  be  argued  that  because  the  writer  in  the 
present  case  uses  the  expression  "capturable  at  sea,"  he  must 
have  thought  that  enemy  goods  in  neutral  ships  lying  in  British 
ports  or  harbours  were,  notwithstanding  the  Declaration  of 
Paris,  still  subject  to  capture.  Such  statements  are  in  any  case 
more  than  counterbalanced  by  statements  contained  in  other 
well-recognized  authorities.  Thus,  in  addition  to  the  passages 
quoted  in  The  Miramichi,  [1915]  P.  73,  at  p.  79,  from  Dana's 
edition  of  Wheaton's  International  Law,  it  will  be  found  that 
Halleck  (International  Law,  4th  ed.,  vol.  2,  p.  98)  states  that 
whatever  bears  the  character  of  enemy  property  (with  a  few 
exceptions  not  material  for  the  purpose  of  this  case),  if  found 
upon  the  ocean  or  afloat  in  port,  is  liable  to  capture  as  a  lawful 
prize  by  the  opposite  belligerent.  It  is  the  enemy  character  of 
the  goods,  and  not  the  nationality  of  the  ship  on  which  they  are 
embarked  or  the  date  of  embarcation,  which  is  the  criterion  of 
lawful  prize.  This  is  in  full  accordance  with  Lord  Stowell's 
statement  in  The  Rebeckah,  1  C.  Rob.  227,  of  the  manner  iu 


THE  ROUMANIAN.  559 

which  the  Order  of  1665  defining  admiralty  droits  has  been  con- 
strued by  usage. 

Passing  to  the  appellants'  third  argument,  that  based  on  the 
Declaration  of  Paris  or  the  principle  supposed  to  underlie  such 
Declaration,  it  may  be  stated  more  fully  as  follows:  Enemy 
goods  on  neutral  territory  were  never  the  legitimate  subject  of 
maritime  prize.  Such  goods  could  not  be  seized  without  an  in- 
fringement of  the  rights  of  neutrals.  The  rights  of  neutrals  are 
similarly  infringed  if  enemy  goods  be  seized  on  neutral  ships, 
but  the  law  of  prize  having  for  the  most- part  been  formulated 
and  laid  down  by  nations  capable  of  exercising  and  able  to  ex- 
ercise the  pressure  of  sea  power,  the  rights  of  neutrals  have  been 
ignored  to  this  extent,  that  the  capture  of  enemy  goods  in  neu- 
tral vessels  on  the  high  seas  or  in  ports  or  harbours  of  the  realm 
has  been  deemed  lawful  capture.  The  Declaration  of  Paris  is  in 
fuller  accordance  with  principle ;  it  recognizes  that  no  distinc- 
tion can  be  drawn  between  neutral  territory  and  neutral  ships. 
To  use  Westlake's  expression  (International  Law,  part  2,  p. 
145),  it  assimilates  neutral  ships  to  neutral  territory,  recogniz- 
ing that  on  both  the  authority  of  the  neutral  State  ought  (ex- 
cept possibly  in  the  case  of  contraband)  to  be  exclusive.  So  far, 
the  argument  proceeds  logically,  but  its  next  step  is,  in  their 
Lordships'  opinion,  open  to  considerable  criticism.  If,  say  the 
appellants,  neutral  ships  are  assimilated,  as  on  principle  they 
should  be,  to  neutral  territory,  British  ships  ought  to  be  in  like 
manner  assimilated  to  British  territory.  Whatever  may  have 
been  the  case  in  earlier  times,  no  one  will  now  contend  that  the 
private  property  of  enemy  subjects  found  within  the  realm  at 
the  commencement  of  a  war  can  be  seized  and  appropriated  by 
the  Crown.  The  same  ought,  therefore,  to  hold  of  enemy  goods 
found  in  British  ships  at  the  commencement  of  war.  This  part 
of  the  argument  is,  in  their  Lordships'  opinion,  quite  fallacious. 
The  Declaration  of  Paris,  in  effect,  modified  the  rules  of  our 
Prize  Courts  for  the  benefit  of  neutrals.  It  was  based  on  inter- 
national comity,  and  was  not  intended  to  modify  the  law  appli- 
cable to  British  ships  or  British  subjects  in  cases  where  neutrals 
were  not  concerned.  Its  effect  may  possibly  be  summed  up  by 
saying  that  it  assimilates  neutral  ships  to  neutral  territory,  but  it 
is  impossible  to  base  on  this  assimilation  any  argument  for  the 
immunity  of  enemy  goods  in  British  ships.  The  cases  are  not 
in  pari  materia.  If  the  Crown  has  ceased  to  exercise  its  ancient 
rights  to  seize  and  appropriate  the  goods  of  enemy  subjects  on 


560      WAR  RIGHTS  AS  TO  PRIVATE  PROPERTY. 

land,  it  is  because  the  advantage  to  be  thus  gained  has  been 
small  compared  with  the  injury  thereby  entailed  on  private  in- 
dividuals, or  in  order  to  ensure  similar  treatment  of  British 
goods  on  enemy  territory.  But  one  of  the  greatest  advantages 
of  sea  power  is  the  ability  to  cripple  an  enemy's  external  trade, 
and  for  this  reason  the  Crown's  right  to  seize  and  appropriate 
enemy  goods  on  the  high  seas  or  in  territorial  waters  or  the  ports 
or  harbours  of  the  realm  has  never  been  allowed  to  fall  into  des- 
uetude. In  order  in  the  fullest  degree  to  attain  this  advantage 
of  sea  power  our  Courts  have  always  upheld  the  right  of  seizing 
such  goods  even  when  in  neutral  bottoms,  and  neutrals  have 
always  admitted  or  acquiesced  in  the  exercise  of  that  right, 
either  because  it  was  deemed  to  be  a  legitimate  exercise  of  sea 
power  in  time  of  war,  or  because  on  some  future  occasion  they 
themselves  might  be  belligerents  and  desire  to  exercise  a  similar 
right  on  their  own  behalf.  Those  who  were  responsible  for  the 
Declaration  of  Paris  had  not  to  weigh  the  advantage  to  be 
gained  by  the  seizure  of  enemy  goods  on  neutral  ships  against 
the  injury  thereby  inflicted  on  private  owners,  but  against  the 
demands  of  international  comity.  The  fact  that  we  sacrificed  on 
the  altar  of  international  comity  a  considerable  part  of  the  ad- 
vantages incident  to  power  at  sea  is  no  legitimate  reason  for 
making  a  further  sacrifice  where  no  question  of  international 
comity  can  possibly  arise. 

Their  Lordships  hold,  therefore,  on  this  part  of  the  case,  that 
enemy  goods  on  British  ships,  whether  on  board  at  the  commence- 
ment of  tbe  hostilities  or  embarked  during  the  hostilities,  always 
were,  and  still  are,  liable  to  be  seized  as  prize,  either  on  the  high 
seas  or  in  the  ports  or  harbours  of  the  realm.  It  follows  that 
the  petroleum  seized  on  board  the  Roumanian  was  properly  con- 
demned as  prize.  .  .  . 


THE  LUSITANIA.  561 

THE  LUSITANIA. 

PETITION    OF    CUNARD    STEAMSHIP    COMPANY, 
LIMITED. 

DlSTBICT  COUBT  OF  THE  UNITED  STATES  FOB  THE  SOUTHEBN  DlSTBICT  OF 

NEW  YORK.     1918. 

251  Fed.  715. 

In  Admiralty.  In  the  matter  of  the  petition  of  the  Cunard 
Steamship  Company,  Limited,  as  owner  of  the  steamship  Lusi- 
tania,  for  limitation  of  its  liability.  .  .  . 

MAYER,  District  Judge.  On  May  1,  1915,  the  British  passen- 
ger carrying  merchantman  Lusitania  sailed  from  New  York, 
bound  for  Liverpool,  with  1257  passengers  and  a  crew  of  702, 
making  a  total  of  1959  souls  on  board,  men,  women  and  children. 
At  approximately  2  :10  on  the  afternoon  of  May  7,  1915,  weather 
clear  and  sea  smooth,  without  warning,  the  vessel  was  torpedoed 
and  went  down  by  the  head  in  about  18  minutes,  with  an  ulti- 
mate tragic  loss  of  life  of  1195.  Numerous  suits  having  been 
begun  against  the  Cunard  Steamship  Company,  Limited,  the 
owner  of  the  vessel,  this  proceeding  was  brought  in  familiar 
form,  by  the  steamship  company,  as  petitioner,  to  obtain  an  ad- 
judication as  to  liability,  and  to  limit  petitioner's  liability  to 
its  interest  in  the  vessel  and  her  pending  freight,  should  the 
court  find  any  liability.  .  .  . 

[The  learned  judge  then  finds,  upon  examination  of  the  facts, 
that  the  vessel  was  seaworthy  in  the  highest  degree ;  .that  it  was 
amply  equipped  with  life-saving  devices;  that  her  equipment 
was  in  excellent  order ;  that  her  captain  and  other  officers  were 
competent  and  experienced  and  her  crew  good;  that  adequate 
boat  drills  were  held;  that  she  was  not  and  never  had  been 
armed;  and  that  she  carried  no  explosives  in  her  cargo.] 

Having  thus  outlined  the  personnel,  equipment,  and  cargo  of 
the  vessel,  reference  will  now  be  made  to  a  series  of  events  pre- 
ceding her  sailing  on  May  1,  1915.  On  February  4,  1915,  the 
Imperial  German  government  issued  a  proclamation  as  follows : 
"Proclamation. 

"1.  The  waters  surrounding  Great  Britain  and  Ireland,  in- 
cluding the  whole  English  Channel,  are  hereby  declared  to  be 
war  zone.  On  and  after  the  18th  of  February,  1915,  every 


562      WAR  RIGHTS  AS  TO  PRIVATE  PROPERTY. 

enemy  merchant  ship  found  in  the  said  war  zone  will  be  de- 
stroyed without  its  being  always  possible  to  avert  the  dangers 
threatening  the  crews  and  passengers  on  that  account. 

"2.  Even  neutral  ships  are  exposed  to  danger  in  the  war 
zone,  as  in  view  of  the  misuse  of  neutral  flags  ordered  on  Jan- 
uary 31  by  the  British  government,  and  of  the  accidents  of  naval 
war,  it  cannot  always  be  avoided  to  strike  even  neutral  ships  in 
attacks  that  are  directed  at  enemy  ships. 

"3.  Northward  navigation  around  the  Shetland  Islands,  in 
the  eastern  waters  of  the  North  Sea,  and  in  a  strip  of  not  less 
than  30  miles  width  along  the  Netherlands  coast  is  in  no  danger. 

"Von  Pohl, 
"Chief  of  the  Admiral  Staff  of  the  Navy. 

"Berlin,  February  4,  1915." 

This  was  accompanied  by  a  so-called  memorial,  setting  forth 
the  reasons  advanced  by  the  German  government  in  support  of 
the  issuance  of  this  proclamation,  an  extract  from  which  is  as 
follows : 

"Just  as  England  declared  the  whole  North  Sea  between  Scot- 
land and  Norway  to  be  comprised  within  the  seat  of  war,  so  does 
Germany  now  declare  the  waters  surrounding  Great  Britain  and 
Ireland,  including  the  whole  English  Channel,  to  be  comprised 
within  the  seat  of  war,  and  will  prevent  by  all  the  military 
means  at  its  disposal  all  navigation  by  the  enemy  in  those  waters. 
To  this  end  it  will  endeavor  to  destroy,  after  February  18  next, 
any  merchant  vessels  of  the  enemy  which  present  themselves  at 
the  seat  of  war  above  indicated,  although  it  may  not  always  be 
possible  to  avert  the  dangers  which  may  menace  persons  and 
merchandise.  Neutral  powers  are  accordingly  forewarned  not 
to  continue  to  intrust  their  crews,  passengers  or  merchandise  to 
such  vessels. ' ' 

To  this  proclamation  and  memorial  the  government  of  the 
United  States  made  due  protest  under  date  of  February  10, 
1915.  On  the  same  day  protest  was  made  to  England  by  this 
government  regarding  the  use  of  the  American  flag  by  the  Lusi- 
tania  on  its  voyage  through  the  war  zone  on  its  trip  from  New 
York  to  Liverpool  of  January  30,  1915,  in  response  to  which,  on 
February  19,  Sir  Edward  Grey,  Secretary  of  State  for  Foreign 
Affairs,  handed  a  memorandum  to  Mr.  Page,  the  American  am- 
bassador to  England,  containing  the  following  statement : 

"It  was  understood  that  the  German  government  had  an- 
nounced their  intention  of  sinking  British  merchant  vessels  at 


THE  LUSITANIA.  563 

sight  by  torpedoes,  without  giving  any  opportunity  of  making 
any  provisions  for  saving  the  lives  of  non-combatant  crews  and 
passengers.  It  was  in  consequence  of  this  ^hreat  that  the  Lusi- 
tania  raised  the  United  States  flag  on  her  inward  voyage  and  on 
her  subsequent  outward  voyage.  A  request  was  made  by  the 
United  States  passengers  who  were  embarking  on  board  her  that 
the  United  States  flag  should  be  hoisted,  presumably  to  insure 
their  safety." 

The  British  ambassador,  Hon.  Cecil  Spring  Rice,  on  March  1, 
1915,  in  a  communication  to  the  American  Secretary  of  State, 
regarding  an  economic  blockade  of  Germany,  stated  in  reference 
to  the  German  proclamation  of  February  4th : 

"Germany  has  declared  that  the  English  Channel,  the  north 
and  west  coasts  of  France,  and  the  waters  around  the  British 
Isles  are  a  war  area,  and  has  officially  notified  that  all  enemy 
ships  found  in  that  area  will  be  destroyed  and  that  neutral  ves- 
sels may  be  exposed  to  danger.  This  is  in  effect  a  claim  to  tor- 
pedo at  sight,  without  regard  to  the  safety  of  the  crew  or  pas- 
sengers, any  merchant  vessel  under  any  flag.  As  it  is  not  in  the 
power  of  the  German  Admiralty  to  maintain  any  surface  craft 
in  these  waters,  this  attack  can  only  be  delivered  by  submarine 
agency. ' ' 

Beginning  with  the  30th  of  January,  1915,  and  prior  to  the 
sinking  of  the  Lusitania  on  May  7,  1915,  German  submarines 
attacked  and  seemed  to  have  sunk  20  merchant  and  passenger 
ships  within  about  100  miles  of  the  usual  course  of  the  Lusitania, 
chased  2  other  vessels,  which  escaped,  and  damaged  still  an- 
other. 

It  will  be  noted  that  nothing  is  stated  in  the  German  mem- 
orandum, supra,  as  to  sinking  enemy  merchant  vessels  without 
warning,  but,  on  the  contrary,  the  implication  is  that  settled 
international  law  as  to  .visit  and  search,  and  an  opportunity  for 
the  lives  of  passengers  to  be  safeguarded,  will  be  obeyed,  "al- 
though it  may  not  always  be  possible  to  avert  the  dangers  which 
may  menace  persons  and  merchandise." 

As  a  result  of  this  submarine  activity,  the  Lusitania,  on  its 
voyages  from  New  York  to  Liverpool,  beginning  with  that  of 
January  30,  1915,  steered  a  course  further  off  from  the  south 
coast  of  Ireland  than  formerly.  In  addition,  after  the  German 
proclamation  of  February  4,  1915,  the  Lusitania  had  its  boats 
swung  out  and  provisioned  while  passing  through  the  danger 
zone,  did  not  use  its  wireless  for  sending  messages,  and  did  not 


564      WAR  RIGHTS  AS  TO  PRIVATE  PROPERTY. 

stop  at  the  Mersey  bar  for  a  pilot,  but  came  directly  up  to  its 
berth. 

The  petitioner  and  the  master  of  the  Lusitania  received  cer- 
tain advices  from  the  British  Admiralty  on  February  10,  1915, 
as  follows: 

"Instructions  with  Reference  to  Submarines — 10th  February, 

1915. 

"Vessels  navigating  in  submarine  areas  should  have  their 
boats  turned  out  and  fully  provisioned.  The  danger  is  greatest 
in  the  vicinity  of  ports  and  oif  prominent  headlands  on  the  coast. 
Important  landfalls  in  this  area  should  be  made  after  dark 
whenever  possible.  So  far  as  is  consistent  with  particular  trades 
and  state  of  tides,  vessels  should  make  their  ports  at  dawn." 

On  April  15  and  16,  1915,  and  after  the  last  voyage  from 
New  York,  preceding  the  one  on  which  the  Lusitania  was  tor- 
pedoed, the  Cunard  Company  and  the  master  of  the  Lusitania 
received  at  Liverpool  the  following  advices  from  the  British 
Admiralty : 

"Confidential  Daily  Voyage  Notice,  15th  April,  1915,  Issued 
under  Government  War  Risks  Scheme. 

"German  submarines  appear  to  be  operating  chiefly  off  prom- 
inent headlands  and  landfalls.  Ships  should  give  prominent 
headlands  a  wide  berth." 

Confidential  memo.,  issued  April  16,  1915: 

"War  experience  has  shown  that  fast  steamers  can  consider- 
ably reduce  the  chance  of  successful  surprise  submarine  attack 
by  zigzagging — that  is  to  say,  altering  the  course  at  short  and 
irregular  intervals,  say  in  ten  minutes  to  half  an  hour.  This 
course  is  almost  invariably  adopted  by  warships,  when  cruising 
in  an  area  known  to  be  infested  by  submarines.  The  underwater 
speed  of  a  submarine  is  very  low,  and  it  is  exceedingly  difficult 
for  her  to  get  into  position  to  deliver  an  attack,  unless  'she  can 
observe  and  predict  the  course  of  the  ship  attacked. ' ' 

Sir  Alfred  Booth,  chairman  of  the  Cunard  Line,  was  a  mem- 
ber of  the  War  Risks  Committee  at  Liverpool,  consisting  of  ship- 
owners, representatives  of  the  Board  of  Trade  and  the  Admiral- 
ty, which  received  these  instructions,  and  passed  them  on  to  the 
owners  of  vessels,  including  the  Cunard  Company,  who  dis- 
tributed them  to  the  individual  masters. 

On  Saturday,  May  1,  1915,  the  advertised  sailing  date  of  the 
Lusitania  from  New  York  to  Liverpool  on  the  voyage  on  which 
she  was  subsequently  sunk,  there  appeared  the  following  adver- 


THE  LUSITANIA.  565 

tisement  in  the  New  York  Times,  New  York  Tribune,  New  York 
Sun,  New  York  Herald,  and  New  York  World;  this  advertise- 
ment being,  in  all  instances  except  one,  placed  directly  over, 
under,  or  adjacent  to  the  advertisement  of  the  Cunard  Line  re- 
garding the  sailing  of  the  Lusitania : 

"Travelers  intending  to  embark  on  the  Atlantic  voyage  are 
reminded  that  a  state  of  war  exists  between  Germany  and  her 
allies  and  Great  Britain  and  her  allies.  That  the  zone  of  war 
includes  the  waters  adjacent  to  the  British  Isles.  That  in  ac- 
cordance with  formal  notice  given  by  the  Imperial  German  gov- 
ernment vessels  flying  the  flag  of  Great  Britain  or  of  any  of  her 
allies  are  liable  to  destruction  in  those  waters  and  that  travelers 
sailing  in  the  war  zone  on  ships  of  Great  Britain  or  her  allies 
do  so  at  their  own  risk. 

"April  22,  1915.  Imperial  German  Embassy, 

Washington,  D.  C." 

This  was  the  first  insertion  of  this  advertisement,  although  it 
was  dated  more  than  a  week  prior  to  its  publication.  Capt. 
Turner,  the  master  of  the  vessel,  saw  the  advertisement  or 
"something  of  the  kind"  before  sailing  and  realized  that  the 
Lusitania  was  included  in  the  warning.  The  Liverpool  office  of 
the  Cunard  Company  was  advised  of  the  sailing  and  the  number 
of  passengers  by  cable  from  the  New  York  office,  but  no  mention 
was  made  of  the  above  quoted  advertisement.  Sir  Alfred  Booth 
was  informed  through  the  press  of  this  advertisement  on  either 
Saturday  evening,  May  1st,  or  Sunday  morning,  May  2d. 

The  significance  and  construction  to  be  given  to  this  adver- 
tisement will  be  discussed  infra,  but  it  is  perfectly  plain  that 
the  master  was  fully  justified  in  sailing  on  the  appointed  day 
from  a  neutral  port  with  many  neutral  and  noncombatant  pas- 
sengers, unless  he  and  his  company  were  willing  to  yield  to  the 
attempt  of  the  German  government  to  terrify  British  shipping. 
No  one  familiar  with  the  British  character  would  expect  that 
such  a  threat  would  accomplish  more  than  to  emphasize  the  ne- 
cessity of  taking  every  precaution,  to  protect  life  and  property, 
which  the  exercise  of  judgment  would  invite.  And  so,  as  sched- 
uled, the  Lusitania  sailed,  undisguised,  with  her  four  funnels 
and  a  figure  so  familiar  as  to  be  readily  discernible,  not  only  by 
naval  officers  and  mariners,  but  by  the  ocean-going  public  gen- 
erally. 

The  voyage  was  uneventful  until  May  6th.  On  approaching 
the  Irish  coast,  on  May  6th,  the  captain  ordered  all  the  boats 


566      WAR  RIGHTS  AS  TO  PRIVATE  PROPERTY. 

hanging  on  the  davits  to  be  swung  out  and  lowered  to  the  prom- 
enade deck  rail,  and  this  order  was  carried  out  under  the  super- 
vision of  Staff  Capt.  Anderson,  who  later  went  down  with  the 
ship.  All  bulkhead  doors  which  were  not  necessary  for  the 
working  of  the  ship  were  closed,  and  it  was  reported  to  Capt. 
Turner  that  this  had  been  done.  Lookouts  were  doubled,  and 
two  extra  were  put  forward  and  one  on  either  side  of  the  bridge  ; 
that  is,  there  were  two  lookouts  in  the  crow's  nest,  two  in  the 
eyes  of  the  ship,  two  officers  on  the  bridge,  and  a  quartermaster 
on  either  side  of  the  bridge. 

Directions  were  given  to  the  engine  room  to  keep  the  highest 
steam  they  could  possibly  get  on  the  boilers  and  in  case  the 
bridge  rang  for  full  speed  to  give  as  much  as  they  possibly  could. 
Orders  were  also  given  that  ports  should  be  kept  closed.  At 
7  :50  p.  m.  on  May  6th  the  Lusitania  received  the  following  wire- 
less message  from  the  Admiralty  at  Queenstown : 

"Submarines  active  off  south  coast  of  Ireland." 

And  at  7 :56  the  vessel  asked  for  and  received  a  repetition  of 
this  message.  The  ship  was  then  going  at  a  rate  of  21  knots  per 
hour.  At  8  :30  p.  m.  of  the  same  day  the  following  message  was 
received  from  the  British  Admiralty: 

"To  All  British  Ships  0005: 

"Take  Liverpool  pilot  at  bar  and  avoid  headlands.  Pass  har- 
bors at  full  speed;  steer  mid-channel  course.  Submarines  off 
Fastnet." 

At  8  :32  the  Admiralty  received  a  communication  to  show  that 
this  message  had  been  received  by  the  Lusitania,  and  the  same 
message  was  offered  to  the  vessel  seven  times  between  midnight 
of  May  6th  and  10  a.  m.  of  May  7th.  At  about  8  a.  m.  on  the 
morning  of  May  7th,  on  approaching  the  Irish  coast,  the  vessel 
encountered  an  intermittent  fog  or  Scotch  mist,  called  "banks" 
in  seafaring  language  and  the  speed  was  reduce.d  to  15  knots. 
Previously,  the  speed,  according  to  Capt.  Turner's  recollection, 
had  been  reduced  to  18  knots.  This  adjustment  of  speed  was 
due  to  the  fact  that  Capt.  Turner  wished  to  run  the  last  150 
miles  of  the  voyage  in  the  dark,  so  as  to  make  Liverpool  early 
on  the  morning  of  May  8th,  at  the  earliest  time  when  he  could 
cross  the  bar  without  a  pilot. 

Judging  from  the  location  of  previous  submarine  attacks,  the 
most  dangerous  waters  in  the  Lusitania 's  course  were  from  the 
entrance  to  St.  George's  Channel  to  Liverpool  bar.  There  is  no 
dispute  as  to  the  proposition  that  a  vessel  darkened  is  much 


THE  LUSITANIA.  567 

safer  from  submarine  attack  at  night  than  in  the  daytime,  and 
Capt.  Turner  exercised  proper  and  good  judgment  in  planning 
accordingly  as  he  approached  dangerous  waters.  It  is  futile  to 
conjecture  as  to  what  would  or  would  not  have  happened  had 
the  speed  been  higher  prior  to  the  approach  to  the  Irish  coast, 
because,  obviously,  until  then,  the  captain  could  not  figure  out 
his  situation,  not  knowing  how  he  might  be  impeded  by  fog  or 
other  unfavorable  weather  conditions. 

On  the  morning  of  May  7,  1915,  the  ship  passed  about  25  or 
26,  and,  in  any  event,  at  least  IS1/^  miles  south  of  Fastnet,  which 
was  not  in  sight.  The  course  was  then  held  up  slightly  to  bring 
the  ship  closer  to  land,  and  a  little  before  noon  land  was  sighted, 
and  what  was  thought  to  be  Brow  Head  was  made  out.  Mean- 
while, between  11  a.  m.  and  noon,  the  fog  disappeared,  the 
weather  became  clear,  and  the  speed  was  increased  to  18  knots. 
The  course  of  the  vessel  was  S.  87°  E.  mag.  At  11 :25  a.  m.  Capt. 
Turner  received  the  following  message : 

"Submarines  active  in. southern  part  of  Irish  Channel  fast 
heard  of  20  miles  south  of  Coningbeg  Light  vessel  make  certain 
Lusitania  gets  this." 

At  12 :40  p.  m.  the  following  additional  wireless  message  from 
the  Admiralty  was  received : 

"Submarines  5  miles  south  of  Cape  Clear  proceeding  west 
when  sighted  at  10  a.  m. " 

After  picking  up  Brow  Head,  and  at  about  12  :40  p.  m.,  the 
course  was  altered  in  shore  by  about  30  degrees  to  about  N.  63° 
or  67°  E.  mag.,  Capt.  Turner  did  not  recall  which.  Land  was 
sighted  which  the  captain  thought  was  Galley  Head,  but  he  was 
not  sure,  and  therefore  held  in  shore.  This  last  course  was  con- 
tinued for  an  hour  at  a  speed  of  18  knots  until  1 :40  p.  m.,  when 
the  Old  Head  of  Kinsale  was  sighted,  and  the  course  was  then 
changed  back  to  the  original  course  of  S.  87°  E.  mag.  At  1:50 
p.  m.  the  captain  started  to  take  a  four  point  bearing  on  the 
Old  Head  of  Kinsale,  and  while  thus  engaged,  and  at  about  2 :10 
p.  m.,  as  heretofore  stated,  the  ship  was  torpedoed  on  the  star- 
board side.  Whether  one,  two,  or  three  torpedoes  were  fired  at 
the  vessel  cannot  be  determined  with  certainty.  Two  of  the 
ship's  crew  were  confident  that  a  third  torpedo  was  fired  and 
missed  the  ship.  While  not  doubting  the  good  faith  of  these 
witnesses,  the  evidence  is  not  sufficiently  satisfactory  to  be  con- 
vincing. 

There  was,  however,  an  interesting  and  remarkable  conflict  of 


568      WAR  RIGHTS  AS  TO  PRIVATE  PROPERTY. 

testimony  as  to  whether  the  ship  was  struck  by  one  or  two  tor- 
pedoes, and  witnesses,  both  passengers  and  crew,  differed  on  this 
point,  conscientiously  and  emphatically;  some  witnesses  for 
claimants  and  some  for  petitioner  holding  one  view,  and  others, 
called  by  each  side,  holding  the  opposite  view.  The  witnesses 
were  all  highly  intelligent,  and  there  is  no  doubt  that  all  testified 
to  the  best  of  their  recollection,  knowledge,  or  impression,  and 
in  accordance  with  their  honest  conviction.  The  weight  of  the 
testimony  (too  voluminous  to  analyze)  is  in  favor  of  the  "two 
torpedo ' '  contention,  not  only  because  of  some  convincing  direct 
testimony  (as,  for  instance,  Adams,  Lehman,  Morton),  but  also 
because  of  the  unquestioned  surrounding  circumstances.  The 
deliberate  character  of  the  attack  upon  a  vessel  whose  identity 
could  not  be  mistaken,  made  easy  on  a  bright  day,  and  the  fact 
that  the  vessel  had  no  means  of  defending  herself,  would  lead 
to  the  inference  that  the  submarine  commander  would  make  sure 
of  her  destruction.  Further,  the  evidence  is  overwhelming  that 
there  was  a  second  explosion.  The  witnesses  differ  as  to  the  im- 
pression which  the  sound  of  this  explosion  made  upon  them — a 
natural  difference,  due  to  the  fact,  known  by  common  experi- 
ence, that  persons  who  hear  the  same  explosion,  even  at  the  same 
time,  will  not  only  describe  the  sound  differently, .  but  will  not 
agree  as  to  the  number  of  detonations.  As  there  were  no  explo- 
sives on  board,  it  is  difficult  to  account  for  the  second  explosion, 
except  on  the  theory  that  it  was  caused  by  a  second  torpedo. 
Whether  the  number  of  torpedoes  was  one  or  two  is  relevant, 
in  this  case,  only  upon  the  question  of  what  effect,  if  any,  open 
ports  had  in  accelerating  the  sinking  of  the  ship.  .  .  . 

No  transatlantic  passenger  liner,  and  certainly  none  carry- 
ing American  citizens,  had  been  torpedoed  up  to  that  time.  The 
submarine,  therefore,  could  lay  their  plans  with  facility  to  de- 
stroy the  vessel  somewhere  on  the  way  from  Fastnet  to  Liver- 
pool, knowing  full  well  the  easy  prey  which  would  be  afforded 
by  an  unarmed,  unconvoyed,  well-known  merchantman,  which, 
from  every  standpoint  of  international  law,  had  a  right  to  ex- 
pect a  warning  before  its  peaceful  passengers  were  sent  to  their 
death.  That  the  attack  was  deliberate,  and  long  contemplated, 
and  intended  ruthlessly  to  destroy  human  life,  as  well  as  prop- 
erty, can  no  longer  be  open  to  doubt.  And  when  a  foe  employs 
such  tactics  it  is  idle  and  purely  speculative  to  say  that  the  ac- 
tion of  the  captain  of  a  merchant  ship,  in  doing  or  not  doing 
something,  or  in  taking  one  course  and  not  another,  was  a  con- 


THE  LUSITANIA.  569 

tributing  cause  of  disaster,  or  that,  had  the  captain  not  done 
what  he  did,  or  had  he  done  something  else,  then  that  the  ship 
and  her  passengers  would  have  evaded  their  assassins. 

I  find,  therefore,  as  a  fact,  that  the  captain,  and,  hence,  the 
petitioner,  were  not  negligent.  The  importance  of  the  cause, 
however,  justifies  the  statement  of  another  ground  which  effect- 
ually disposes  of  any  question  of  liability. 

It  is  an  elementary  principle  of  law  that,  even  if  a  person  is 
negligent,  recovery  cannot  be  had,  unless  the  negligence  is  the 
proximate  cause  of  the  loss  or  damage. 

There  is  another  rule,  settled  by  ample  authority,  viz.  that, 
even  if  negligence  is  shown,  it  canncjt  be  the  proximate  cause  of 
the  loss  or  damage,  if  an  independent  illegal  act  of  a  third  party 
intervenes  to  cause  the  loss.  .  .  .  The  question,  then,  is 
whether  the  act  of  the  German  submarine  commander  was  an 
illegal  act. 

The  United  States  courts  recognize  the  binding  force  of  inter- 
national law.  As  was  said  by  Mr.  Justice  Gray  in  The  Paquete 
Habana,  175  U.  S.  677,  700,  20  Sup.  Ct.  290,  299  (44  L.  Ed. 
320): 

"International  law  is  part  of  our  law,  and  must  be  ascer- 
tained and  administered  by  the  courts  of  justice  of  appropriate 
jurisdiction  as  often  as  questions  of  right  depending  upon  it 
are  duly  presented  for  their  determination. ' ' 

At  least,  since  as  early  as  June  5,  1793,  in  the  letter  of  Mr. 
Jefferson,  Secretary  of  State,  to  the  French  minister,  our  gov- 
ernment has  recognized  the  law  of  nations  as  an  "integral  part" 
of  the  laws  of  the  land.  Moore's  International  Law  Digest,  I, 
p.  10;  The  Scotia,  14  Wall.  170,  187,  20  L.  Ed.  822;  The  New 
York,  175  U.  S.  187,  197,  20  Sup  Ct.  67,  44  L.  Ed.  126 ;  Kansas 
v.  Colorado,  185  U.  S.  125,  146,  22  Sup.  Ct.  552,  46  L.  Ed.  838 ; 
Kansas  v.  Colorado,  206  U.  S.  46,  27  Sup.  Ct.  655,  51  L.  Ed.  956. 
To  ascertain  international  law: 

"Resort  must  be  had  to  the  customs  and  usages  of  civilized 
nations,  and,  as  evidence  of  these,  to  the  works  of  commentators 
and  jurists.  .  .  .  Such  works  are  resorted  to  by  judicial  tri- 
bunals .  .  .  for  trustworthy  evidence  of  what  the  law  really 
is."  The  Paquete  Habana,  175  U.  S.  677,  20  Sup.  Ct.  290,  44 
L.  Ed.  320  (and  authorities  cited). 

Let  us  first  see  the  position  of  our  government,  and  then  as- 
certain whether  that  position  has  authoritative  support.  Mr. 


570      WAR  RIGHTS  AS  TO  PRIVATE  PROPERTY. 

Lansing,  in  his  official  communication  to  the  German  govern- 
ment, dated  June  9,  1915,  stated: 

"But  the  sinking  of  passenger  ships  involves  principles  of  hu- 
manity which  throw  into  the  background  any  special  circum- 
stances of  detail  that  may  be  thought  to  affect  the  cases — prin- 
ciples which  lift  it,  as  the  Imperial  German  government  will  no 
doubt  be  quick  to  recognize  and  acknowledge,  out  of  the  class 
of  ordinary  subjects  of  diplomatic  discussion  or  of  international 
controversy.  Whatever  be  the  other  facts  regarding  the  Lusi- 
tania,  the  principal  fact  is  that  a  great  steamer,  primarily  and 
chiefly  a  conveyance  for  passengers,  and  carrying  more  than  a 
thousand  souls,  who  had  no  part  or  lot  in  the  conduct  of  the  war, 
was  torpedoed  and  sunk  without  so  much  as  a  challenge  or  a 
warning,  and  tfyat  men,  women,  and  children  were  sent  to  their 
death  in  circumstances  unparalleled  in  modern  warfare.  The 
fact  that  more  than  one  hundred  American  citizens  were  among 
those  who  perished  made  it  the  duty  of  the  government  of  the 
United  States  to  speak  of  these  things,  and  once  more,  with 
solemn  emphasis,  to  call  the  attention  of  the  Imperial  German 
government  to  the  grave  responsibility  which  the  government 
of  the  United  States  conceives  that  it  has  incurred  in  this  tragic 
occurrence,  and  to  the  indisputable  principle  upon  which  that 
responsibility  rests.  The  government  of  the  United  States  is 
contending  for  something  much  greater  than  mere  rights  of 
property  or  privileges  of  commerce.  It  is  contending  for  noth- 
ing less  high  and  sacred  than  the  rights  of  humanity,  which 
every  government  honors  itself  in  respecting,  and  which  no  gov- 
ernment is  justified  in  resigning  on  behalf  of  those  under  its 
care  and  authority.  Only  her  actual  resistance  to  capture,  or 
refusal  to  stop  when  ordered  to  do  so  for  the  purpose  of  visit, 
could  have  afforded  the  commander  of  the  submarine  any  jus- 
tification for  so  much  as  putting  the  lives  of  those  on  board  the 
ship  in  jeopardy.  This  principle  the  government  of  the  United 
States  understands  the  explicit  instructions  issued  on  August  3, 
1914,  by  the  Imperial  German  Admiralty  to  its  commanders  at 
sea,  to  have  recognized  and  embodied,  as  do  the  naval  codes  of 
all  other  nations,  and  upon  it  every  traveler  and  seaman  had  a 
right  to  depend.  It  is  upon  this  principle  of  humanity,  as  well 
as  upon  the  law  founded  upon  this  principle,  that  the  United 
States  must  stand.  .  .  .  The  government  of  the  United  States 
cannot  admit  that  the  proclamation  of  a  war  zone  from  which 
neutral  ships  have  been  warned  to  keep  away  may  be  made  to 


THE  LUSITANIA.  571 

operate  as  in  any  degree  an  abbreviation  of  the  rights  either  of 
American  shipmasters  or  of  American  citizens  bound  on  lawful 
errands  as  passengers  on  merchant  ships  of  belligerent  nation- 
ality. It  does  not  understand  the  Imperial  German  government 
to  question  those  rights.  It  understands  it,  also,  to  accept  as 
established  beyond  question  the  principle  that  the  lives  of  non- 
combatants  cannot  lawfully  or  rightfully  be  put  in  jeopardy  by 
the  capture  or  destruction  of  an  unresisting  merchantman,  and 
to  recognize  the  obligation  to  take  sufficient  precaution  to  ascer- 
tain whether  a  suspected  merchantman  is  in  fact  of  belligerent 
nationality,  or  is  in  fact  carrying  contraband  of  war  under  a 
neutral  flag.  The  government  of  the  United  States,  therefore, 
deems  it  reasonable  to  expect  that  the  Imperial  German  govern- 
ment will  adopt  the  measures  necessary  to  put  these  principles 
into  practice  in  respect  of  the  safeguarding  of  American  lives 
and  American  ships,  and  asks  for  assurances  that  this  will  be 
done."  White  Book  of  Department  of  State,  entitled  " Diplo- 
matic Correspondence  with  Belligerent  Governments  Relating 
to  Neutral  Rights  and  Duties,  European  War  No.  2,"  at  page 
172.  Printed  and  distributed  October  21,  1915. 

The  German  government  found  itself  compelled  ultimately  to 
recognize  the  principle  insisted  upon  by  the  government  of  the 
United  States,  for,  after  considerable  correspondence,  and  on 
May,  4,  1916  (after  the  Sussex  had  been  sunk),  the  German 
government  stated: 

"The  German  submarine  forces  have  had,  in  fact,  orders  to 
conduct  submarine  warfare  in  accordance  with  the  general  prin- 
ciples of  visit  and  search  and  destruction  of  merchant  vessels 
as  recognized  by  international  law;  the  sole  exception  being  the 
conduct  of  warfare  against  the  enemy  trade  carried  on  enemy 
freight  ships  that  are  encountered  in  the  war  zone  surrounding 
Great  Britain.  .  .  .  The  German  government,  guided  by  this 
idea,  notifies  the  government  of  the  United  States  that  the  Ger- 
man naval  forces  have  received  the  following  orders:  In  ac- 
cordance with  the  general  principles  of  visit  and  search  and  de- 
struction of  merchant  vessels  recognized  by  international  law, 
such  vessels,  both  within  and  without  the  area  declared  as  naval 
war  zone,  shall  not  be  sunk  without  warning  and  without  saving 
human  lives,  unless  these  ships  attempt  to  escape  or  offer  re- 
sistance. ' ' 

See  Official  Communication  by  German  Foreign  Office  to  Am- 


572      WAR  RIGHTS  AS  TO  PRIVATE  PROPERTY. 

bassador  Gerard,  May  4,  1916  ("White  Book  No.  3  of  Department 
of  State,  pp.  302,  305). 

There  is,  of  course,  no  doubt  as  to  the  right  to  make  prize  of 
an  enemy  ship  on  the  high  'seas,  and,  under  certain  conditions, 
to  destroy  her,  and  equally  no  doubt  of  the'  obligation  to  safe- 
guard the  lives  of  all  persons  aboard,  whether  passengers  or 
crew.  .  .  . 

The  observation  in  Vattel's  Law  of  Nations  is  peculiarly  ap- 
plicable to  the  case  of  the  Lusitania : 

"Let  us  never  forget  that  our  enemies  are  men.  Though  re- 
duced to  the  disagreeable  necessity  of  prosecuting  our  right  by 
force  of  arms,  let  us  not  divest  ourselves  of  that  charity  which 
connects  us  with  all  mankind.  Thus  shall  we  courageously  de- 
fend our  country's  rights  without  violating  those  of  human 
nature.  Let  our  valor  preserve  itself  from  every  stain  of  cruelty 
and  the  luster  of  victory  will  not  be  tarnished  by  inhuman  and 
brutal  actions." 

In  addition  to  the  authorities  supra  are  the  regulations  and 
practices  of  various  governments.  In  1512,  Henry  VIII  issued 
instructions  to  the  Admiral  of  the  Fleet  which  accord  with  our 
understanding  of  modern  international  law.  Hosack's  Law  of 
Nations,  p.  168.  Such  has  been  England's  Bourse  since.  22  Geo. 
II,  c.  33  §  2,  subsec.  9  (1749)  ;  British  Admiralty  Manual  of 
Prize  Law  188,  §§  303,  304. 

Substantially  the  same  rules  were  followed  in  the  Russian  and 
Japanese  regulations,  and  probably  in  the  codes  "or  rules  of 
many  other  nations.  Russian  Prize  Regulations,  March  27,  1895 
(cited  in  Moore's  Digest,  vol.  7,  p.  518)  ;  Japanese  Prize  Law 
of  1894,  art.  22  (cited  in  Moore,  supra,  vol.  7,  p.  525)  ;  Japanese 
Regulations,  March  7,  1904  (see  Takahashi's  Cases  on  Interna- 
tional Law  during  Chino-Japanese  War). 

The  rules  recognized  and  practiced  by  the  United  States, 
among  other  things,  provide: 

"  (10)  In  the  case  of  an  enemy  merchantman  it  may  be  sunk, 
but  only  if  it  is  impossible  to  take  it  into  port,  and  provided 
always  that  the  persons  on  board  are  put  in  a  place  of  safety." 
U.  S.  White  Book,  European  War,  No.  3,  p.  192. 

These  humane  principles  were  practiced,  both  in  the  War  of 
1812  and  during  our  own  war  of  1861-1865.  Even  with  all  the 
bitterness  (now  happily  ended  and  forgotten)  and  all  the  diffi- 
culties of  having  no  port  to  which  to  send  a  prize,  Capt.  Semmes, 
of  the  Alabama,  strictly  observed  the  rule  as  to  human  life,  even 


THE  LUSITANIA.  573 

going  so  far  as  to  release  ships  because  he  could  not  care  for 
the  passengers.  But  we  are  not  confined  to  American  and 
English  precedents  and  practices. 

While  acting  contrary  to  its  official  statements,  yet  the  Im- 
perial German  government  recognized  the  same  rule  as  the 
United  States,  and,  prior  to  the  sinking  of  the  Lusitania,  had 
not  announced  any  other  rule.  The  war  zone  proclamation  of 
February  4,  1915,  contained  no  warning  that  the  accepted  rule 
of  civilized  naval  warfare  would  be  discarded  by  the  German 
government.  Indeed,  after  the  Lusitania  was  sunk,  the  German 
government  did  not  make  any  such  claim,  but,  in  answer  to  the 
first  American  note  in  reference  to  the  Lusitania,  the  German 
Foreign  Office,  per  Von  Jagow,  addressed  to  Ambassador 
Gerard  a  note,  dated  May  18,  1915,  in  which,  inter  alia,  it  is 
stated  in  connection  with  the  sinking  of  the  British  steamer 
Falaba : 

"In  the  case  of  the  sinking  of  the  English  steamer  Falaba, 
the  commander  of  'the  German  submarine  had  the  intention  of 
allowing  passengers  and  crew  ample  opportunity  to  save  them- 
selves. It  was  not  until  the  captain  disregarded  the  order  to 
lay  to  and  took  to  flight,  sending  up  rocket  signals  for  help,  that 
the  German  commander  ordered  the  crew  and  passengers  by  sig- 
nals and  megaphone  to  leave  the  ship  within  10  minutes.  As  a 
matter  of  fact  he  allowed  them  23  minutes,  and  did  not  fire  the 
torpedo  until  suspicious  steamers  were  hurrying  to  the  aid  of 
the  Falaba,"  White  Book  No.  2,  U.  S.  Department  of  State, 
p.  169.  . 

Indeed,  as  late  as  May  4,  1916,  Germany  did  not  dispute  the 
applicability  of  the  rule,  as  is  evidenced  by  the  note  written  to 
our  government  by  Von  Jagow,  of  the  German  Foreign  Office, 
an  extract  from  which  has  been  quoted  supra. 

Further,  section  116  of  the  German  Prize  Code  (Huberich  & 
King  translation,  p.  68),  in  force  at  the  date  of  the  Lusitania 's 
destruction,  conformed  with  the  American  rule.  It  provided : 

"Before  proceeding  to  a  destruction  of  the  vessel,  the  safety 
of  all  persons  on  board,  and,  so  far  as  possible,  their  effects,  is 
to  be  provided  for,  and  all  ship's  papers  and  other  evidentiary 
material,  which,  according  to  the  views  of  the  persons  at  in- 
terest, is  of  value  for  the  formulation  of  the  judgment  of  the 
prize  court,  are  to  be  taken  over  by  the  commander." 

Thus,  when  the  Lusitania  sailed  from  New  York,  her  owner 
and  master  were  justified  in  believing  that,  whatever  else  had 


574      WAR  RIGHTS  AS  TO  PRIVATE  PROPERTY. 

theretofore  happened,  this  simple,  humane,  and  universally  ac- 
cepted principle  would  not  be  violated.  Few,  at  that  time, 
would  be  likely  to  construe  the  warning  advertisement  as  calling 
attention  to  more  than  the  perils  to  be  expected  from  quick  dis- 
embarkation and  the  possible  rigors  of  the  sea,  after  the  proper 
safeguarding  of  the  lives  of  passengers  by  at  least  full  oppor- 
tunity to  take  to  the  boats. 

It  is,  of  course,  easy  now,  in  the  light  of  many  later  events, 
added  to  preceding  acts,  to  look  back  and  say  that  the  Cunard 
Line  and  its  captain  should  have  known  that  the  German  gov- 
ernment would  authorize  or  permit  so  shocking  a  breach  of  in- 
ternational law  and  so  foul  an  offence,  not  only  against  an 
enemy,  but  as  well  against  peaceful  citizens  of  a  then  friendly 
nation.  But  the  unexpected  character  of  the  act  was  best  evi- 
denced by  the  horror  which  it  excited  in  the  minds  and  hearts 
of  the  American  people. 

The  fault,  therefore,  must  be  laid  upon  those  who  are  respon- 
sible for  the  sinking  of  the  vessel,  in  the  legal  as  well  as  moral 
sense.  It  is  therefore  not  the  Cunard  Line,  petitioner,  which 
must  be  held  liable  for  the  loss  of  life  and  property.  The  cause 
of  the  sinking  of  the  Lusitania  was  the  illegal  act  of  the  Im- 
perial German  government,  acting  through  its  instrument,  the 
submarine  commander,  and  violating  a  cherished  and  humane 
rule  observed,  until  this  war,  by  even  the  bitterest  antagonists. 
As  Lord  Mersey  said : 

"The  whole  blame  for  the  cruel  destruction  of  life  in  this 
catastrophe  must  rest  solely  with  those  who  plotted  and  with 
those  who  committed  the  crime." 

But  while,  in  this  lawsuit,  there  may  be  no  recovery,  it  is  not 
to  be  doubted  that  the  United  States  of  America  and  her  Allies 
will  well  remember  the  rights  of  those  affected  by  the  sinking 
of  the  Lusitania,  and,  when  the  time  shall  come,  will  see  to  it 
that  reparation  shall  be  made  for  one  of  the  most  indefensible 
acts  of  modern  times. 

The  petition  is  granted,  and  the  claims  dismissed,  without 
costs. 

NOTE. — The  right  of  visit  and  search  was  one  of  the  first  belligerent 
rights  to  obtain  recognition.  As  early  as  the  reign  of  Edward  III 
(1327-1377),  resistance  to  visit  and  search  was  held  to  justify  con- 
demnation. In  1512,  more  than  a  century  before  Grotius'  great  work 


NOTE.  575 

appeared,  Henry  VIII  gave  these  instructions: 

If  any  Shippe  or  Shippes  of  the  Flete  mete  any  other 
Shippes  or  Vessels  on  the  See,  or  in  Porte  or  Fortes,  making 
Rebellion,  Resistance,  or  Defence,  ayenst  them,  then  it  is 
lawfull  for  them  to  assaulte  and  take  theym  with  strong  hand, 
to  bring  them  holy  and  entierly  to  the  said  Admiral  without 
dispoyllyng,  rifelyng,  or  enbeselyng  of  the  Goods,  or  doing 
harme  to  the  Parties,  ther  t'abyde  th'  Ordinance  of  the  Lawe, 
as  the  said  Admirall  shall  awarde. 

Rymer,  Foedera,  VI,  Part  I,  32. 

The  right  of  visit  and  search  is  strictly  a  war  right  and  may  be 
exercised  only  in  time  of  war,  Le  Louis  (1817),  2  Dodson,  210,  245; 
The  Marianna  Flora  (1826),  11  Wheaton,  1;  The  Ship  Rose  (1901),, 
36  Ct.  Cl.  290;  The  Brig  Fair  American  (1904),  39  Ib.  184.  Hence 
in  the  absence  of  treaty,  merchant  vessels  may  not  be  stopped  by  the 
cruisers  of  other  countries  on  suspicion  that  they  are  engaged  in  the 
slave  trade,  The  Antelope  (1825),  10  Wheaton,  66.  The  right  may 
be  exercised  only  in  belligerent  waters  or  on  the  high  seas.  The 
Vrow  Anna  Catherina  (1806),  5  C.  Robinson,  15.  The  search  must 
be  conducted  with  due  regard  to  the  rights  and  safety  and  convenience 
of  the  vessel  detained,  The  Anna  Maria  (1817),  2  Wheaton,  327,  and 
when  that  is  done  any  incidental  injury  resulting  from  detention  is 
damnum  absque  injuria  which  must  be  submitted  to,  The  Eleanor 
(1817),  2  Wheaton,  345;  The  Juno  (1914),  1  Br.  &  Col.  P.  C.  151; 
The  Tredegar  Hall  (1915),  1  Ib.  492.  Since  a  belligerent  has  a  right 
to  search;  all  merchant  vessels  on  the  high  seas,  resistance  to  search 
is  a  wrong  which  justifies  condemnation,  The  Ship  Rose  (1901),  36 
Ct.  Cl.  290;  The  Schooner  Jane  (1901),  37  Ib.  24,  and  forfeits  neutral 
protection,  Maley  v.  Shattuck  (1806),  3  Cranch,  458;  The  Baigorry 
(1865),  2  Wallace,  474.  The  same  penalty  was  imposed  in  the  case 
of  an  attempted  rescue  by  a  neutral  crew  after  capture,  The  Cath- 
erina Elizabeth  (1804),  5  C.  Robinson,  232,  but  mere  flight  unaccom- 
panied by  resistance  does  not  warrant  condemnation,  The  Mentor 
(1810),  Edwards,  207.  The  use  of  fraudulent  devises  to  evade  capture 
justifies  the  condemnation  of  the  ship,  The  Aphrodite  (1905),  2  Hurst 
&  Bray,  240.  Acceptance  of  a  belligerent  convoy  is  constructive  re- 
sistance,— that  is,  it  is  such  an  abandonment  of  neutrality  and  al- 
liance with  the  enemy  as  will  justify  a  belligerent  in  attacking  with- 
out first  searching,  The  Elsebe  (1804),  5  C.  Robinson,  173;  The  Nancy 
(1892),  27  Ct.  Cl.  99;  The  Sea  Nymph  (1901),  36  Ib.  369;  The  Ship 
Galen  (1901),  37  Ib.  89.  Whether  a  neutral  ship  under  the  convoy 
of  a  neutral  war  vessel  is  exempt  from  search  was  long  a  subject  of 
controversy.  Until  1908  Great  Britain  refused  to  recognize  such  a 
result,  but  in  the  Declaration  of  London,  articles  61  and  62,  she  ad- 
mitted the  right  of  convoy.  A  vessel  may  also  be  condemned  if  it 
sails  under  an  enemy  license,  The  Julia  (1814),  8  Cranch,  181;  The 
Aurora  (1814),  8  Ib.  203;  The  Hiram  (1816),  1  Wheaton,  440;  The 
Ariadne  (1817),  2  Ib.  143;  The  Adula  (1900),  176  U.  S.  361.  A  vessel 


576      WAR  RIGHTS  AS  TO  PRIVATE  PROPERTY. 

may  be  seized  if  her  papers  are  not  in  proper  form,  The  Sarah  (1801), 
3  C.  Robinson,  330;  The  Dos  Hennanos  (1817),  2  Wheaton,  76;  The 
Pizarro  (1817),  2  Ib.  227;  The  Caroline  (1855),  Spinks,  252;  The 
Peterhoff  (1866),  5  Wallace,  28.  Neutral  goods  found  upon  an  armed 
enemy  merchantman  have  been  condemned  by  British  prize  courts, 
The  Fanny  (1814),  1  Dodson,  443,  but  this  seems  to  be  unduly  rigor- 
ous and  in  such  cases  American  prize  courts  release  the  goods,  The 
Nereide  (1815),  9  Cranch,  388.  Neutral  property  which  is  fraudu- 
lently blended  with  enemy  property  shares  the  fate  of  the  latter,  The 
St.  Nicholas  (1816),  1  Wheaton,  417;  The  Fortuna  (1818),  3  Ib.  236. 
The  right  of  capture  was  much  restricted  by  the  adoption  in  1856 
of  the  four  rules  of  the  Declaration  of  Paris  (ante,  12),  the  second 
and  third  of  which  exempted  from  capture  all  neutral  goods  except 
contraband,  and  all  enemy  goods  in  neutral  ships  except  contraband. 
But  goods  on  an  enemy  ship  bound  to  an  enemy  port  are  prima  facie 
enemy  goods,  and  a  neutral  claimant  of  such  goods  must  satisfy  the 
-court  by  clear  proof,  The  Roland  (1915),  31  T.  L.  R.  357.  Enemy  goods 
which  have  been  voluntarily  removed  from  a  neutral  ship  and  placed 
in  lighters  at  once  lose  the  protection  of  the  neutral  flag  and  are 
subject  to  seizure,  The  Anastassios  Koroneos  (Malta,  1915),  1  Br. 
&  Col.  P.  C.  519.  On  the  history  of  the  Declaration  of  Paris,  see  Sir 
Francis  Piggott,  The  Declaration  of  Paris,  1856,  which  contains  many 
documents. 

Enemy  ships  and  all  enemy  goods  thereon  are  liable  to  capture 
and  condemnation  if  taken  on  the  high  seas  even  though  the  vessel 
set  sail  before  the  outbreak  of  war  and  the  captain  was  unaware  of 
the  existence  of  war  at  the  time  of  capture,  The  Perkeo  (1914),  1 
Br.  &  Col.  Prize  Cases,  136.  As  to  what  constitutes  capture  see 
The  Pellworm  (1922),  L.  R.  [1922]  1  A.  C.  292.  Before  the  en- 
trance of  Italy  into  the  Great  War  goods  in  India  belonging 
to  an  English  house  were  hypothecated  to  the  Calcutta  branch 
of  a  German  bank  and  shipped  on  an  Austrian  vessel  to  an 
Italian  port  where  they  were  seized  after  the  outbreak  of  war  be- 
tween Italy  and  Austria.  The  Italian  Prize  Court  held  that  the 
title  to  the  goods  vested  in  the  enemy  bank  and  that  consequently 
they  were  subject  to  capture,  The  Moravia,  Gazzetta  Ufficiale,  Jan.  29, 
1917.  Neutral  goods  which  were  seized  in  the  same  vessel  were  re- 
leased. See  also  The  Aldworth  (1914),  31  T.  L.  R.  36,  as  to  the  cap- 
ture of  enemy  goods  on  a  British  ship,  and  The  Schlesien  (no.  2) 
(1916),  2  Br.  &  Col.  P.  C.  268,  as  to  the  capture  of  enemy  goods  on 
enemy  ships  which  entered  a  British  port  before  the  outbreak  of  war. 
Goods  cannot  be  condemned  as  enemy  goods  unless  they  were  enemy 
property  at  the  time  of  seizure  even  though  they  may  become  enemy 
property  before  the  issue  of  a  writ  claiming  their  condemnation,  The 
Orteric  (1920),  L.  R.  [1920]  A.  C.  724.  The  Capture  of  any  vessel 
on  the  high  seas  is  justified  if  there  is  a  reasonable  suspicion  of 
illegitimate  traffic,  of  enemy  cargo,  of  unneutral  service  or  of  any 
cause  which  would  justify  condemnation.  The  fact  that  the  captor^ 
proved  to  be  mistaken  does  not  make  his  act  unlawful  if  he  acted 
upon  reasonable  grounds.  The  George  (1815),  1  Mason,  24;  The  Ostsee 


NOTE.  577 

(1855),  9  Moore,  P.  C.  150;  and  the  justification  of  his  action  may  be 
determined  by  evidence  obtained  after  the  seizure,  The  Falk  (1921), 
L.  R.  [1921]  1  A.  C.  787.  A  steamer  which  had  formerly  been  the 
British  steamer  Ceylon  but  which  had  recently  changed  its  name  to 
Davenger  and  had  taken  out  a  Norwegian  registry  and  which  was 
commanded  by  a  captain  with  an  English  name  was  captured  by  a 
German  cruiser  and  sunk  because  she  did  not  have  on  board  the  docu- 
ments required  by  the  Norwegian  law  to  prove  her  nationality.  Later 
it  was  ascertained  that  the  vessel  was  in  reality  a  neutral  vessel,  but 
the  action  of  the  captain  of  the  German  cruiser  was  sustained,  The 
Davenger  (1917),  Entscheidungen,  232.  In  The  Hasenkamp  (1915), 
Entscheidungen,  50,  the  German  Prize  Court  held  that  the  seizure  of 
a  Dutch  fishing  vessel  on  suspicion  that  it  was  rendering  unneutral 
service  was  justified  by  the  presence  of  four  persons  on  board  whose 
names  did  not  appear  in  the  crew  list.  The  suspicion  was  not  estab- 
lished and  the  vessel  was  released,  but  the  owner  was  refused  dam- 
ages for  detention.  In  the  case  of  The  Star  (1915),  Entscheidungen, 
66,  a  Swedish  vessel  which  was  bound  for  Russia  was  suspected  of- 
carrying  contraband,  and  as  it  could  not  be  thoroughly  searched  at 
the  place  of  seizure  it  was  taken  to  a  German  port  and  unloaded.  No 
contraband  was  found.  The  owners'  claim  for  damages  was  rejected 
on  the  ground  that  much  of  the  cargo  consisted  of  machinery  packed 
in  heavy  boxes  which  could  not  be  examined  at  sea.  In  The  Kaipara 
(1917).  Entscheidungen,  288,  a  British  steamer  loaded  with  neutral 
cargo  at  Montevideo  before  the  outbreak  of  war  was  sunk  because 
of  the  proximity  of  British  cruisers.  The  neutral  owner's  claim  for 
damages  was  rejected  on  the  ground  that  since  the  sinking  of  the 
ship  was  lawful  there  was  no  reason  for  indemnifying  the  neutral 
owners.  In  The  Glitra  (1915),  Entscheidungen,  34,  claims  of  neutral 
owners  of  cargo  lost  on  a  British  ship  sunk  by  a  German  submarine 
were  rejected.  The  German  Prize  Court  held  that  since  the  sinking 
of  the  vessel  was  lawful  the  goods,  even  though  not  themselves 
subject  to  capture,  must  share  the  fate  of  the  vessel.  Such  a  loss 
was  said  to  be  analogous  to  damage  to  neutral  private  property  in 
a  town  bombarded  by  the  enemy. 

The  captor  of  goods  seized  as  prize  is  a  bailee  and  must  use  due 
care  for  their  preservation,  The  William  (1806),  6  C.  Robinson,  316. 
If  he  insures  the  goods  and  they  are  restored  to  the  owner,  he  is  not 
entitled  to  reimbursement  of  the  cost  of  the  insurance  if  the  expense 
was  incurred  for  his  own  protection,  The  Catherine  and  Anna  (1801), 
4  C.  Robinson,  39;  The  Cairnsmore  (1920),  L.  R.  [1921]  1  A.  C.  439; 
but  if  the  goods  were  insured  for  the  benefit  of  the  owner  the  captor 
is  entitled  to  his  costs,  The  United  States  (1920),  L.  R.  [1920]  P.  431. 
It  would  seem  to  follow  that  a  captor  who  fails  to  insure  goods  in  his 
possession  is  not  exercising  due  care,  but  in  The  New  Sweden  (1921), 
126  L.  T.  R.  31,  it  was  held  to  the  contrary. 

Goods  of  neutrals  in  the  custody  of  a  prize  court  for  adjudication 
may  under  certain  conditions  be  requisitioned.  This  right  was  as- 
serted in  The  Memphis  (1862),  Blatchford,  202;  The  Ella  Warley 
(1862),  Ib.  204;  The  Stephen  Hart  (1863),  Ib.  387.  British  prize 


578      WAR  EIGHTS  AS  TO  PRIVATE  PROPERTY. 

courts  have  passed  upon  the  question  In  only  two  cases, — The  Curlew, 
The  Magnet  (Nova  Scotia,  1812),  Stewart,  312,  and  The  Zamora 
(1916),  L.  R.  [1916]  2  A.  C.  77.  The  latter  is  the  best  discussion  of 
the  subject  in  the  books,  and  the  conclusion  of  the  Privy  Council  is 
thus  stated: 

A  belligerent  Power  has  by  international  law  the  right  to 
requisition  vessels  or  goods  in  the  custody  of  its  Prize  Court 
pending  a  decision  of  the  question  whether  they  should  be 
condemned  or  released,  but  such  right  is  subject  to  certain 
limitations,  First,  the  vessel  or  goods  in  question  must  be  ur- 
gently required  for  use  in  connection  with  the  defence  of  the 
realm,  the  prosecution  of  the  war,  or  other  matters  involving 
national  security.  Secondly,  there  must  be  a  real  question  to 
be  tried,  so  that  it  would  be  improper  to  order  an  immediate 
release.  And,  thirdly,  the  right  must  be  enforced  by  applica- 
tion to  the  Prize  Court,  which  must  determine  judicially 
whether,  under  the  particular  circumstances  of  the  case,  the 
right  is  exercisable. 

There  has  been  much  difference  of  opinion  as  to  when  the  title  to 
captured  property  passes.  Hall,  somewhat  diffidently,  concludes  that 
title  passes  when  the  captured  property  has  been  brought  into  a  place 
so  secure  that  the  owner  can  have  no  immediate  prospect  of  recov- 
ering it.  Westlake  holds  that  the  captor's  title  may  not  be  disputed 
by  the  enemy.  The  general  practice  of  maritime  countries  is  to  re- 
quire that  prizes  should  be  brought  within  the  territorial  jurisdiction 
of  the  captor  where  the  validity  of  the  seizure  may  be  examined  in 
a  judicial  proceeding.  This  practice  is  to  be  commended.  If  only  * 
the  interests  of  the  two  belligerents  were  concerned,  the  mere  fact 
of  capture  might  he  recognized  as  sufficient  to  transfer  title;  but  if 
the  captured  vessel  were  sold  to  a  neutral  who  might  then  be  sub- 
ject to  a  claim  on  the  part  of  the  original  owner,  the  neutral  owner, 
in  the  absence  of  a  judicial  decree,  would  find  it  difficult  to  defend 
his  title.  Condemnation  by  a  prize  court  has  the  great  advantage  that 
it  establishes  the  fact  that  the  capture  was  made  in  accordance  with 
recognized  rules  of  law.  When  the  validity  of  the  capture  is  thus 
determined,  title  relates  back  to  the  date  of  seizure.  Hence  if  a 
vessel  is  lost  after  its  seizure  and  before  condemnation,  the  original 
owner  who  had  insured  his  vessel  against  loss  cannot  recover  on  his 
policy,  Andersen  v.  Marten  (1908),  L.  R.  [1908]  A.  C.  334.  For  an 
adverse  criticism  of  this  decision  see  Harvard  Law  Review,  XXI,  55. 
The  subject  was  fully  considered  in  The  Anthippi  (Italy,  1917), 
Gazzetta  Ufficiale,  June  2,  1917.  It  follows  that  a  vessel  and  cargo 
may  be  condemned  after  the  conclusions  of  peace,  The  Australia 
(Japan,  1906),  2  Hurst  &  Bray,  373,  The  Montara  (Japan,  1906),  2 
Ib.  403,  even  though  the  seizure  may  have  been  made  after  the  con- 
clusion of  an  armistice,  The  Rannveig  (1920),  L.  R.  [1920]  P.  177. 

Ever  since  the  war  between  the  United  States  and  Mexico,  when  the 
American  Government  allowed  mail  steamers  to  enter  and  depart  from 
Vera  Cruz  at  will,  a  sentiment  in  favor  of  the  exemption  of  the  mails 


THE  VROW  MARGARETHA.  579 

from  visit  and  search  has  been  growing  up  and  found  expression  In 
the  Eleventh  Hague  Convention  of  1907,  which  declared  "postal  cor- 
respondence of  neutrals  or  belligerents"  to  be  inviolable.  There  would 
seem  to  be  no  reason,  however,  why  contraband  carried  in  the  mails 
should  be  treated  any  differently  from  contraband  carried  in  any 
other  way.  In  the  Great  War,  the  wide  use  made  of  the  parcel  post 
for  the  carriage  of  such  contraband  articles  as  rubber,  wool,  and  even 
revolvers  (400  revolvers  were  found  in  the  mails  on  one  steamer) 
naturally  led  to  a  strict  construction  of  the  term  "postal  correspond- 
ence," The  Tubantia  (1916),  32  T.  L.  R.  529.  The  subject  is  ably 
discussed  in  Secretary  Lansing's  note  of  May  24,  1916,  to  the  British 
Ambassador,  criticised  in  Am.  Jour.  Int.  Law,  X,  580.  See  also  Allin, 
"Belligerent  Interference  with  Mails,"  Minnesota  Law  Review,  I,  293. 

On  the  whole  subject  see  the  able  brief  of  Richard  Henry  Dana  in 
The  Prize  Cases  (1863),  2  Black,  635,  650;  Atherley-Jones,  chs.  v-viii; 
Pyke,  The  Law  of  Contraband  of  War,  ch.  xv;  Int.  Law  Topics,  1905, 
9,  48,  107;  Ib.  1913,  113;  Int.  Law  Situations,  1901,  99;  Ib.  1907,  60; 
Ib.  1911,  37;  Earl  Loreburn,  Capture  at  Sea,  chs.  ii  and  iii;  Cobbett, 
Cases  and  Opinions,  II,  132,  478;  Bonfils  (Fauchille),  sees.  1269,  1396; 
Hyde,  II,  433,  491;  Moore,  Digest,  VII,  ch.  xxiv. 


SECTION  3.    TRANSFERS  OP  ENEMY  PROPERTY. 
THE  VROW  MARGARETHA. 

HIGH  COUET  OF  ADMIRALTY  OF  ENGLAND.    1799. 
1  C.  Robinson,  336. 

/ 

This  was  a  case  of  a  cargo  of  brandies,  shipped  by  Spanish 
merchants  in  Spain,  in  May,  1794,  before  Spanish  hostilities, 
and  transferred  to  Mr.  Berkeymyer  at  Hamburgh,  during  their 
voyage  to  Holland.  .  .  . 

SIR  W.  SCOTT  [LORD  STOWELL] — This  is  a  claim  of  Mr.  Ph. 
Berkeymyer  of  Hamburgh  for  some  parcels  of  wine  which  were 
seized  on  board  three  Dutch  vessels  detained  by  order  of  gov- 
ernment in  1795.  The  ships  have  been  since  condemned;  the 
cargoes  were  described  in  the  ship's  papers,  as  far  as  the  prop- 
erty was  expressed,  as  belonging  to  Spanish  merchants.  It  is 
material,  in  this  case,  to  consider  the  relative  situation  of  the 
countries  from  which  and  to  which  these  cargoes  were  going. 
Spain  and  Holland  were  then  in  alliance  with  this  country  and 
at  war  with  France ;  it  might,  therefore,  be  an  inducement  with 
a  Spanish  merchant  to  conceal  the  property  of  his  goods,  al- 
though it  does  not  appear  to  have  existed  in  any  great  degree,  as 
the  goods  were  coming  under  an  English  convoy,  and  as  they 


580      WAR  RIGHTS  AS  TO  PRIVATE  PROPERTY. 

were  shipped  "as  Spanish  wines,"  and  destined,  avowedly,  to 
Holland ;  there  was,  therefore,  nothing  in  this  part  of  the  case  to 
mislead  our  cruizers.     Mr.  Berkeymyer  is  allowed  to  be  an  in- 
habitant of  Hamburgh,  although  he  had  made  a  journey,  a  short 
time  previous  to  the  shipment  of  these  cargoes,  to  Spain,  (where 
he  had  resided  some  years  before,)  to  settle  his  affairs,  and  bring 
off  the  property  which  he  had  left  behind  him.    He  had  quitted 
Spain,  however,  previous  to  the  breaking  out  of  Spanish  hostili- 
ties, and  had  resumed  his  original  character  of  a  merchant  of 
Hamburgh. — The  account  which  he  gives  of  his  transactions  in 
Spain,  as  far  as  they  regard  this  case,  is,  that  he  entered  into  a 
contract  with  two  Spanish  houses  for  some  wines,  which  were  at 
the  time  actually  shipped,  and  in  itinere  towards  Holland.    The 
first  objection  that  has  been  taken  is,  that  such  a  transfer  is  in- 
valid, and  cannot  be  set  up  in  a  Prize  Court,  where  the  property 
is  always  considered  to  remain  in  the  same  character  in  which 
it  was  shipped  till  the  delivery.     If  that  could  be  maintained, 
there  would  be  an  end  of  the  question,  because  it  has  been  ad- 
mitted that  these  wines  were  shipped  as  Spanish  property,  and 
that  Spanish  property  is  now  become  liable  to  condemnation. 
But  I  apprehend  it  is  a  position  which  cannot  be  maintained  in 
that  extent.    In  the  ordinary  course  of  things  in  time  of  peace — 
for  it  is  not  denied  that  such  a  contract  may  be  made,  and  ef- 
fectually made   (according  to  the  usage  of  merchants)   such  a 
transfer  in  transitu  might  certainly  be  made.    It  has  even  been 
contended,  that  a  mere  delivering  of  the  bill  of  lading  is  a  trans- 
fer of  the  property.    But  it  might  be  more  correctly  expressed, 
perhaps,  if  said  that  it  transfers  only  the  right  of  delivery;  but 
that  a  transfer  of  the  bill  of  lading,  with  a  contract  of  sale  ac- 
companying it,  may  transfer  the  property  in  the  ordinary  course 
of  things,  so  as  effectually  to  bind  the  parties,  and  all  others, 
cannot  well  be  doubted.    When  war  intervenes,  another  rule  is 
set  up  by  Courts  of  Admiralty,  which  interferes  with  the  ordi- 
nary practice.    In  a  state  of  war,  existing  or  imminent,  it  is  held 
that  the  property  shall  be  deemed  to  continue  as  it  was  at  the 
time  of  shipment  till  the  actual  delivery;  this  arises  out  of  the 
state  of  war,  which  gives  a  belligerent  a  right  to  stop  the  goods 
of  his  enemy.    If  such  a  rule  did  [not]  exist,  all  goods  shipped  in 
the  enemy's  country,  would  be  protected  by  transfers  which  it 
would  be  impossible  to  detect.     It  is  on  that  principle  held,  I 
believe,  as  a  general  rule,  that  property  cannot  be  converted  in 
transitu;  and  in  that  sense  I  recognize  it  as  the  rule  of  this 


THE  VROW  MARGARETHA.  581 

Court.  But  this  arises,  as  I  have  said,  out  of  a  state  of  war, 
which  creates  new  rights  in  other  parties,  and  cannot  be  ap- 
plied to  transactions  originating,  like  this,  in  a  time  of  peace. 
The  transfer,  therefore,  must  be  considered  as  not  invalid  in 
point  of  law,  at  the  time  of  the  contract ;  and  being  made  before 
the  war,  it  must  be  judged  according  to  the  ordinary  rules  of 
commerce. 

It  has  been  farther  objected  to  the  validity  of  this  contract, 
that  a  part  of  the  wines  did  actually  reach  Holland,  where  they 
were  sold,  and  the  money  was  detained  by  the  consignees  in  pay- 
ment of  the  advances  which  they  had  made.  It  is  said  that  this 
annuls  the  contract — to  the  extent  of  that  part  it  may  do  so, 
and  the  deficiency  must  be  made  up  to  the  purchaser  by  other 
means ;  but  it  appears  that  it  has  been  actually  supplied  by  bills 
of  exchange,  and  an  assignment  of  other  wines  sent  to  Peters- 
burgh.  It  is  not  for  me  to  set  aside  the  whole  contract  on  that 
partial  ground,  or  to  construe  the  defect  in  the  execution  of  the 
contract  so  rigorously  as  to  extend  it  to  those  wines  which  never 
went  to  Holland,  and  which  never  became  de  facto  subject  to  be 
detained  by  the  consignees.  They  are  free  for  the  contract  to 
act  upon;  and  if  the  parties  are  desirous  of  adhering  to  their 
contract  in  its  whole  extent,  it  does  not  become  other  persons 
to  obstruct  them. 

It  comes  then  to  a  question  of  fact,  whether  it  was  a  bona  fide 
transfer  or  not?  I  think  the  time  is  a  strong  circumstance  to 
prove  the  fairness  of  the  transaction.  Had  it  happened  three 
months  later,  there  might  have  been  reason  to  alarm  the  pru- 
dence of  Spanish  merchants,  and  induce  them  to  resort  to  the 
expedient  of  covering  their  property. — But  at  the  time  of  the 
contract  there  seems  to  have  been  no  reason  for  apprehension, 
and  therefore  there  is  nothing  to  raise  any  suspicion  on  that 
point.  .  .  .  The  impression  upon  my  mind  is,  that  it  is  a 
fair  transaction.  .  .  .  Mr.  Berkeymyer's  claims  were  re- 
stored without  opposition. 


582      WAR  RIGHTS  AS  TO  PRIVATE  PROPERTY. 
THE  BALTICA. 

JUDICIAL  COMMITTEE  OF  THE  PRIVY  COUNCIL  OF  GREAT  BRITAIN.     1857. 
11  Moore,  Privy  Council,  141. 

On  appeal  from  the  High  Court  of  Admiralty  of  England. 

[War  being  imminent  between  Russia  and  Great  Britain, 
the  owner  of  the  Russian  ship  Baltica,  a  Dane  long  domiciled 
at  Libau,  Russia,  sold  the  vessel  to  his  son,  who  was  a  citizen 
of  Denmark.  At  the  time  of  the  sale  the  vessel  was  in  transit 
from  Libau  to  Copenhagen  with  a  cargo  consigned  to  Leith, 
Scotland.  On  its  arrival  at  the  Danish  port,  it  was  delivered 
to  the  purchaser,  the  Danish  flag  was  raised  over  it,  and  it 
was  registered  as  a  Danish  vessel.  Two  months  later,  it  sailed 
from  Copenhagen  to  Leith,  and  upon  arrival  at  that  port  it 
was  seized  as  prize.  The  Crown  argued  that  the  sale  of  the 
vessel  to  a  Danish  citizen  was  invalid  because  made  while  the 
vessel  was  in  transitu.] 

The  Right  HON.  T.  PEMBERTON  LEIGH  [LORD  KINGSDOWN]  : 
.  .  .  The  general  rule  is  open  to  no  doubt.  A  neutral 
while  a  war  is  imminent,  or  after  it  has  commenced,  is  at  liberty 
to  purchase  either  goods  or  ships  (not  being  ships  of  war)  from 
either  belligerent,  and  the  purchase  is  valid,  whether  the  subject 
of  it  be  lying  in  a  neutral  port  or  in  an  enemy's  port.  Dur- 
ing a  time  of  peace,  without  prospect  of  war,  any  transfer  which 
is  sufficient  to  transfer  the  property  between  the  vendor  and 
vendee,  is  good  also  against  a  Captor,  if  war  afterwards  unex- 
pectedly breaks  out.  But,  in  case  of  war,  either  actual  or  immi- 
nent, this  rule  is  subject  to  qualification,  and  it  is  settled  that 
in  such  case  a  mere  transfer  by  documents  which  would  be  suffi- 
cient to  bind  the  parties,  is  not  sufficient  to  change  this  prop- 
erty as  against  Captors,  as  long  as  the  ship  or  goods  remain  in 
transitu.  .  .  . 

The  only  question  of  law  which  can  be  raised  in  this  case,  is 
not  whether  a  transfer  of  a  ship  or  goods  in  transitu,  is  ineffec- 
tual to  change  the  property,  as  long  as  the  state  of  trans itus 
lasts;  but  how  long  that  state  continues,  and  when,  and  by 
what  means,  it  is  terminated. 

In  order  to  determine  the  question,  it  is  necessary  to  consider 
upon  what  principle  the  rule  rests,  and  why  it  is  that  a  sale 


THE  BENITO  ESTENGEE.  583 

which  would  be  perfectly  good  if  made  while  the  property  was 
in  a  neutral  port,  or  while  it  was  in  an  enemy's  port,  is  ineffec- 
tual if  made  while  the  ship  is  on  her  voyage  from  one  port  to  the 
other.  There  seem  to  be  but  two  possible  grounds  of  distinc- 
tion. The  one  is,  that  while  the  ship  is  on  the  seas,  the  title 
of  the  vendee  cannot  be  completed  by  actual  delivery  of  the 
vessel  or  goods;  the  other  is,  that  the  ship  and  goods  having 
incurred  the  risk  of  capture  by  putting  to  sea,  shall  not  be  per- 
mitted to  defeat  the  inchoate  right  of  capture  by  the  belligerent 
Powers,  until  the  voyage  is  at  an  end. 

The  former,  however,  appears  to  be  the  true  ground  on  which 
the  rule  rests.  Such  transactions  during  war,  or  in  contempla- 
tion of  war,  are  so  likely  to  be  merely  colourable,  to  be  set  up 
for  the  purpose  of  misleading,  or  defrauding  Captors,  the  diffi- 
culty of  detecting  such  frauds,  if  mere  paper  transfers  are 
held  sufficient,  is  so  great,  that  the  Courts  have  laid  down  as  a 
general  rule,  that  such  transfers,  without  actual  delivery,  shall 
be  insufficient;  that  in  order  to  defeat  the  Captors,  the  posses- 
sion, as  well  as  the  property,  must  be  changed  before  the  seizure. 
It  is  true  that,  in  one  sense,  the  ship  and  goods  may  be  said  to 
be  in  transitu  till  they  have  reached  their  original  port  of  des- 
tination; but  their  Lordships  have  found  no  case  where  the 
transfer  was  held  to  be  inoperative  after  the  actual  delivery  of 
the  property  to  the  owner.  .  . 

There  can  be  no  manner  of  doubt,  therefore,  that  at  this  time 
[i.  e.  when  the  vessel  sailed  from  Copenhagen  for  Leith]  the 
ship  had  come  fully  into  the  possession  of  the  purchaser,  and 
thereupon,  according  to  the  principles  already  referred  to,  the 
trans  it  us,  in  the  sense  in  which  for  this  purpose  the  word  is 
used,  had  ceased.  .  .  . 

Their  Lordships  will  report  to  Her  Majesty  their  opinion, 
that  ...  an  order  for  restitution  [should  be  made.] 


THE  BENITO  ESTENGER. 

SUPREME  COURT  OF  THE  UNITED  STATES.    1900. 
176  U.  S.  568. 

Appeal  from  the  District  Court  of  the  United  States  for  the 
Southern  District  of  Florida. 


584      WAR  EIGHTS  AS  TO  PRIVATE  PROPERTY. 

[The  Benito  Estenger  was  captured  by  a  public  vessel  of  the 
United  States  off  the  coast  of  Cuba  on  June  27,  1898,  taken  to 
the  port  of  Key  West,  Florida,  libelled,  and  condemned.  From 
the  decree  of  condemnation  the  claimant  appeals  on  the  ground, 
inter  alia,  that  the  vessel  at  the  time  of  capture  was  no  longer 
a  Spanish  vessel,  having  been  transferred  on  June  9,  1898,  to 
a  British  subject  and  registered  at  Kingston,  Jamaica,  as  a  Brit- 
ish vessel.  The  principal  question  was  as  to  the  validity  of  this 
transfer.  Further  facts  appear  in  the  opinion  of  the  court.] 

Mr.  Chief  Justice  FULLER,  after  stating  the  case,  delivered 
the  opinion  of  the  court. 

If  the  alleged  transfer  was  colorable  merely,  and  Messa  was 
the  owner  of  the  vessel  at  the  time  of  capture,  did  the  District 
Court  err  in  condemning  the  Benito  Estenger  as  lawful  prize 
as  enemy  property? 

"Enemy  property"  is  a  -technical  phrase  peculiar  to  prize 
courts,  and  depends  upon  principles  of  public  policy  as  dis- 
tinguished from  the  common  law.  The  general  rule  is  that  in 
war  the  citizens  or  subjects  of  the  belligerents  are  enemies  to 
each  other  without  regard  to  individual  sentiments  or  disposi- 
tions, and  that  political  status  determines  the  question  of  enemy 
ownership.  And  by  the  law  of  prize,  property  engaged  in  any 
illegal  intercourse  with  the  enemy  is  deemed  enemy  property, 
whether  belonging  to  an  ally  or  a  citizen,  as  the  illegal  traffic 
stamps  it  with  the  hostile  character  and  attaches  to  it  all  the 
penal  consequences.  Prize  Cases,  2  Black,  635,  674;  The  Sally, 
8  Cranch,  382,  384;  Jecker  v.  Montgomery,  18  How.  110;  The 
Peterhoff,  5  Wall.  28 ;  The  Flying  Scud,  6  Wall.  263.  .  .  . 

Thus  far  we  have  proceeded  on  the  assumption  that  the  trans- 
fer of  the  Benito  Estenger  was  merely  colorable,  and  this,  if  so, 
furnished  in  itself  ground  for  condemnation.  A  brief  examina- 
tion of  the  evidence,  in  the  light  of  well-settled  principles,  will 
show  that  the  assumption  is  correct. 

Messa 's  story  of  the  transfer  was  that  the  steamer  had  been 
owned  by  Gallego,  Messa  and  Company,  and  then  by  himself; 
that  he  was  compelled  to  sell  in  order  to  get  money  to  live  on; 
that  he  made  the  sale  for  $40,000,  for  which,  or  a  large  amount 
of  which,  credit  was  given  on  an  indebtedness  of  Messa  to 
Beattie  and  Company,  and  that  he  was  employed  by  Beattie  to 
go  on  the  vessel  as  his  representative  and  business  manager. 


THE  BENITO  ESTENGER.  585 

In  short,  the  statements  as  to  price  were  conflicting;  the 
reason  assigned  for  the  sale  was  to  get  money  to  live  on,  and 
yet  apparently  no  money  passed,  and  Messa  said  that  he  re- 
ceived credit  for  a  large  part  of  the  consideration  on  indebted- 
ness to  claimant's  firm;  claimant  himself  refused  to  describe 
the  payment  or  payments;  the  Spanish  master  and  crew  re- 
mained in  charge ;  Messa  went  on  the  voyage  as  supercargo ;  the 
vessel  continued  in  trade,  which,  in  this  instance,  at  least,  ap- 
peared to  be  plainly  trade  with  the  enemy;  and,  finally,  it  is 
said  by  claimant's  counsel  in  his  printed  brief:  "It  will  not  be 
contended  upon  this  appeal  that  all  the  interest  of  Mr.  Messa  in 
the  Benito  Estenger  ceased  on  June  9,  1898.  The  transfer  was 
obviously  made  to  protect  the  steamer  as  neutral  property  from 
Spanish  seizure.  That  Mr.  Messa,  however,  still  retained  a  bene- 
ficial interest  after  this  sale  and  transfer  of  flags,  and  continued 
to  act  for  the  vessel  as  supercargo,  has  not  been  disputed." 

The  attempt  to  break  the  force  of  this  admission  by  the  con- 
tention that  the  change  of  flag  was  justifiable  as  made  to  avoid 
capture  by  the  Spanish  is  no  more  than  a  reiteration  of  the  argu- 
ment that  Messa  Avas  a  Cuban  rebel,  and  his  vessel  a  Cuban 
vessel,  which,  as  has  been  seen,  we  have  been  unable  to  concur 
in.  If  the  transfer  were  invalid,  she  belonged  to  a  Spanish  sub- 
ject, she  was  engaged  in  an  illegal  venture,  and  her  owner  can- 
not plead  his  fear  of  Spanish  aggression. 

Transfers  of  vessels  flagrante  bello  were  originally  held  in- 
valid, but  the  rule  has  been  modified,  and  is  thus  gi*en  by  Mr. 
Hall,  who,  after  stating  that  in  France  "their  sale  is  forbidden, 
and  they  are  declared  to  be  prize  in  all  cases  in  which  they  have 
been  transferred  to  neutrals  after  the  buyers  could  have  knowl- 
edge of  the  outbreak  of  the  war;"  says:  "In  England  and  the 
United  States,  on  the  contrary,  the  right  to  purchase  vessels  r, 
in  principle  admitted,  they  being  in  themselves  legitimate  ob- 
jects of  trade  as  fully  as  any  other  kind  of  merchandise,  but  the 
opportunities  of  fraud  being  great,  the  circumstances  attending 
a  sale  are  severely  scrutinized,  and  the  transfer  is  not  held  to  be 
good  if  it  is  subjected  to  any  condition  or  even  tacit  understand- 
ing by  which  the  vendor  keeps  an  interest  in  the  vessel  or  its 
profits,  a  control  .over  it,  a  power  of  revocation,  or  a  right  to  its 
restoration  at  the  conclusion  of  the  war."  International  Law 
(4th  ed.),  525.  And  to  the  same  effect  is  Mr.  Justice  Story  in 
his  Notes  on  the  Principles  and  Practice  of  Prize  Courts, 
(Pratt's  ed.)  63;  2  Wheat.  App.  30:  "In  respect  to  the  trans- 


586      WAR  RIGHTS  AS  TO  PRIVATE  PROPERTY. 

fers  of  enemies'  ships  during  the  war,  it  is  certain  that  pur- 
chases of  them  by  neutrals  are  not,  in  general,  illegal ;  but  such 
purchases  are  liable  to  great  suspicion ;  and  if  good  proof  be  not 
given  of  their  validity  by  a  bill  of  sale  and  payment  of  a  reason- 
able consideration,  it  will  materially  impair  the  validity  of  a 
neutral  claim;  .  .  .  and  if  after  such  transfer  the  ship  be 
employed  habitually  in  the  enemy 's  trade,  or  under  the  manage- 
ment of  a  hostile  proprietor,  the  sale  will  be  deemed  merely  col- 
orable and  collusive.  .  .  .  Anything  tending  to  continue  the 
interest  of  the  enemy  in  the  ship  vitiates  a  contract  of  this 
description  altogether. ' ' 

The  Sechs  Geschwistern,  4  C.  Rob.  100,  is  cited,  in  which  Sir 
William  Scott  said :  ' '  This  is  the  case  of  a  ship  asserted  to  have 
been  purchased  of  the  enemy;  a  liberty  which  this  country  has 
not  denied  to  neutral  merchants,  though  by  the  regulation  of 
France  it  is  entirely  forbidden.  The  rule  which  this  country 
has  been  content  to  apply  is,  that  property  so  transferred  must 
be  bona  fide  and  absolutely  transferred;  that  there  must  be  a 
sale  divesting  the  enemy  of  all  further  interest  in  it;  and  that 
anything  tending  to  continue  his  interest,  vitiates  a  contract  of 
his  description  altogether." 

In  The  Jemmy,  4  C.  Rob.  31,  the  same  eminent  jurist  ob- 
served: "This  case  has  been  admitted  to  farther  proof,  owing 
entirely  to  the  suppression  of  a  circumstance,  which  if  the  court 
had  known,  it  would  not  have  permitted  farther  proof  to  have 
been  introduced ;  namely,  that  the  ship  has  been  left  in  the  trade, 
and  under  the  management  of  her  former  owner.  Wherever 
that  fact  appears,  the  court  will  hold  it  to  be  conclusive,  be- 
cause, from  the  evidentia  rei,  the  strongest  presumption  neces- 
sarily arises,  that  it  is  merely  a  covered  and  pretended  transfer. 
The  presumption  is  so  strong  that  scarcely  any  proof  can  avail 
against  it.  It  is  a  rule  which  the  court  finds  itself  under  the 
absolute  necessity  of  maintaining.  If  the  enemy  could  be  per- 
mitted to  make  a  transfer  of  the  ship,  and  yet  retain  the  manage- 
ment of  it,  as  a  neutral  vessel,  it  would  be  impossible  for  the 
court  to  protect  itself  against  frauds." 

And  in  The  Omnibus,  6  C.  Rob.  71,  he  said:  "The  court  has 
often  had  occasion  to  observe,  that  where  a  ship,  asserted  to 
have  been  transferred,  is  continued  under  the  former  agency 
and  in  the  former  habits  of  trade,  not  all  the  swearing  in  the 
\vorld  will  convince  it  that  it  is  a  genuine  transaction." 

The  rule  was  stated  by  Judge  Cadwalader  of  the  Eastern  Dis- 


THE  BENITO  ESTENGER.  587 

trict  of  Pennsylvania  thus:  "The  rule  of  decision  in  some 
countries  has  been  that,  as  to  a  vessel,  no  change  of  ownership 
during  hostilities  can  be  regarded  in  a  prize  court.  In  the 
United  States,  as  in  England,  the  strictness  of  this  rule  is  not 
observed.  But  no  such  change  of  property  is  recognized  where 
the  disposition  and  control  of  a  vessel  continue  in  the  former 
agent  of  the  former  hostile  proprietors ;  more  especially  when,  as 
in,  this  case,  he  is  a  person  whose  relations  of  residence  are 
hostile."  The  Island  Belle,  13  Fed.  Cases,  168.  .  .  . 

In  The  Soglasie,  Spinks  Prize  Cases,  104,  Dr.  Lushington  held 
the  onus  probandi  to  be  upon  the  claimant,  and  made  these  ob- 
servations: "With  regard  to  documents  of  a  formal  nature, 
though  when  well  authenticated  they  are  to  be  duly  appreciated, 
it  does  not  follow  that  they  are  always  of  the  greatest  weight, 
because  we  know,  without  attributing  blame  to  the  authorities 
under  which  they  issue,  they  are  instruments  often  procured 
with  extraordinary  facility.  What  the-court  especially  desires 
is,  that  testimony  which  bears  less  the  appearance  of  formality, 
— evidence  natural  to  the  transaction,  but  which  often  carries 
with  it  a  proof  of  its  own  genuineness;  the  court  looks  for  that 
correspondence  and  other  evidence  which  naturally  attends  the 
transaction,  accompanies  it,  or  follows  it,  and  which  when  it 
bears  upon  the  face  of  it  the  aspect  of  sincerity,  will  always 
receive  its  due  weight." 

In  The  Ernst  Merck,  Spinks  Prize  Cases,  98,  the  sale  was  to 
neutrals  of  Mecklenburg  shortly  before  the  breaking  out  of  war, 
and  it  was  ruled  that  the  onus  of  giving  satisfactory  proof  of  the 
sale  was  on  the  claimant,  and  without  it  the  court  could  not 
restore,  even  though  it  was  not  called  on  to  pronounce  affirma- 
tively that  the  transfer  was  fictitious  and  fraudulent.  In  that 
case  the  vessel  was  condemned  partly  because  of  absence  of  proof 
of  payment,  Dr.  Lushington  saying:  "We  all  know  that  one 
of  the  most  important  matters  to  be  established  by  a  claimant  is 
undoubted  proof  of  payment." 

To  the  point  that  the  burden  of  proof  was  on  the  claimant  see 
also  The  Jenny,  5  Wall.  183 ;  The  Amiable  Isabella,  6  Wheat.  1 ; 
The  Lilla,  2  Cliff.  169;  Story's  Prize  Courts,  26. 

We  think  that  the  requirements  of  the  law  of  prize  were  not 
satisfied  by  the  proofs  in  regard  to  this  transfer,  and  on  all  the 
evidence  are  of  opinion  that  the  court  below  was  right  in  the 
conclusion  at  which  it  arrived.  Decree  affirmed. 


o88       WAR  RIGHTS  AS  TO  PRIVATE  PROPERTY. 

MR.  JUSTICE  SHIRAS,  MR.  JUSTICE  WHITE  and  MR.  JUSTICE 
PECKHAM  dissented. 


THE  SOUTHFIELD. 

ADMIRALTY  DIVISION  (IN  PRIZE)  OF  THE  HIGH  COUBT  OF  JUSTICE  OF  ENG- 
LAND.   1915. 
1  British  and  Colonial  Prize  Cases,  332. 

Suit  for  condemnation  of  cargo  as  prize. 

[On  July  16,  1914,  the  British  steamship  Southfield  left 
Novorossiisk,  a  Russian  Black  Sea  port,  with  a  cargo  of  barley 
shipped  by  a  firm  of  German  merchants,  and  consigned  "to  or- 
der, Emden."  During  the  voyage  the  goods  were  sold  to  two 
Dutch  merchants,  Henkers  and  Barghoorn,  carrying  on  business 
in  Holland.  The  dealings  with  Henkers  took  place  between 
July  20  and  July  27  and  those  with  Barghoorn  between  July  24 
and  July  31.  Both  merchants  at  once  re-sold  to  customers  of 
their  own.  War  broke  out  between  Great  Britain  and  Germany 
on  August  4.  The  Southfield  reached  England  August  8,  and 
her  cargo  was  seized  as  pri«e  and  sold.  The  Dutch  merchants 
claim  the  proceeds  on  the  ground  that  their  title  was  complete 
and  was  not  acquired  in  contemplation  of  war.] 

SIR  SAMUEL  EVANS  (THE  PRESIDENT).  .  .  .  It  is  impor- 
tant to  examine  closely  the  principle  which  governs  the  right  of 
capture  of  goods  transferred  in  transitu,  and  to  ascertain  accu- 
rately its  limits,  as  it  is  sometimes  apt  to  be  loosely  stated. 

In  order  to  deduce  the  rule,  it  will  be  sufficient,  I  think,  to 
refer  to  two  leading  cases,  and  to  one  authorized  text  book.  I 
take  them  in  order  of  date.  [His  Lordship  here  quoted  from 
The  Vrow  Margaretha,  1  C.  Robinson,  336,  the  passage  begin- 
ning, "In  the  ordinary  course  of  things  in  time  of  peace,"  ante, 
580.] 

In  the  work  of  Mr.  Justice  Story  on  The  Principles  and  Prac- 
tice of  Prize  Courts,  that  celebrated  jurist  states  the  rule  in  the 
following  passage  (Pratt 's  Edition,  pp.  64-65)  :  "In  respect  to 
the  proprietary  interests  in  cargoes,  though,  in  general,  the  rules 


THE  SOUTHFIELD.  589 

of  the  common  law  apply,  yet  there  are  many  peculiar  prin- 
ciples of  prize  law  to  be  considered;  it  is  a  general  rule,  that, 
during  hostilities,  or  imminent  and  impending  danger  of  hos- 
tilities, the  property  of  parties  belligerent  cannot  change  its 
national  character  during  the  voyage,  or,  as  it  is  commonly  ex- 
pressed, in  transitu.  This  rule  equally  applies  to  ships  and 
cargoes;  and  it  is  so  inflexible  that  it  is  not  relaxed,  even  in 
owners  who  become  subjects  by  capitulation  after  the  shipment 
and  before  the  capture.  .  .  .  The  same  distinction  is  applied 
to  purchases  made  by  neutrals  of  property  in  transitu;  if  pur- 
chased during  a  state  of  war  existing  or  imminent,  and  impend- 
ing danger  of  war,  the  contract  is  held  invalid,  and  the  property 
is  deemed  to  continue  as  it  was  at  the  time  of  shipment  until  the 
actual  delivery.  It  is  otherwise,  however,  if  a  contract  be  made 
during  a  state  of  peace,  and  without  contemplation  of  war;  for, 
under  such  circumstances,  the  Prize  Courts  will  recognize  the 
contract  and  enforce  the  title  acquired  under  it.  ...  The 
reason  why  Courts  of  Admiralty  have  established  this  rule  as  to 
transfers  in  transitu  during  a  state  of  war  or  expected  war,  is 
asserted  to  be,  that  if  such  a  rule  did  not  exist  all  goods  shipped 
in  the  enemy's  country  would  be  protected  by  transfers,  which 
it  would  be  impossible  to  detect." 

[His  Lordship  then  quoted  the  passage  from  The  Baltica,  11 
Moore,  Privy  Council,  141,  beginning  with  the  words,  "The 
general  rule  is  open  to  no  doubt,"  ante,  582.] 

It  might  be  argued  that  according  to  these  authorities  trans- 
fers in  transitu  are  invalid  against  belligerent  captors  upon  the 
intervention  of  war  unless  there  is  actual  delivery  before  cap- 
ture ;  or,  in  other  words,  that  if  war  has  intervened  no  transfer 
by  documents  alone  can  defeat  the  right  of  capture.  But,  in  my 
opinion,  that  proposition  is  too  wide,  and  is  not  an  accurate 
delimitation  of  the  true  rule.  In  the  passages  cited  Lord  Stowell 
speaks  of  "a  state  of  war  existing  or  imminent";  Mr.  Justice 
Story  of  "a  state  of  war  existing  or  imminent  and  impending 
danger  of  war ' ' ;  and  Lord  Kingsdown  of  ' '  war,  either  actual  or 
imminent,"  of  "war  unexpectedly  breaking  out"  (contrasting 
it  with  "a  time  of  peace,  without  prospect  of  war"),  and  of 
"transactions  during  war  or  in  contemplation  of  war,"  .  .  . 

In  my  view  the  element  that  the  vendor  contemplated  war, 
and  had  the  design  to  make  the  transfer  in  order  to  secure  him- 
self and  to  attempt  to  defeat  the  rights  of  belligerent  captors,  is 
necessarily  involved  in  the  rule  which  invalidates  such  transfers. 


590      WAR  RIGHTS  AS  TO  PRIVATE  PROPERTY. 

Sales  of  goods  upon  ships  afloat  are  now  of  such  common  occur- 
rence in  commerce  that  it  would  be  too  harsh  a  rule  to  treat  such 
transfers  as  invalid  unless  such  an  element  existed.  .  .  . 

As  to  the  facts  in  these  two  cases,  it  is  abundantly  clear  that 
the  neutral  purchasers  acted  with  complete  lona  fides  through- 
out; they  paid  for  the  goods,  and  re-sold  them  to  neutral  cus- 
tomers of  their  own  before  war  was  declared.  This  would  not 
necessarily  conclude  the  matter. 

But  I  am  also  satisfied  that  the  vendors  did  not  have  the  war 
between  their  country  and  this  country  (to  which  the  ship  carry- 
ing the  goods  belonged)  in  contemplation  when  they  sold  the 
goods.  The  imminence  of  war  between  Germany  and  Russia 
has  no  materiality  in  considering  these  cases.  In  the  light  of 
after  events,  the  war  with  this  country  may  be  spoken  of  as 
having  been  imminent,  regarded  from  the  point  of  view  of  time, 
in  the  last  two  weeks  of  July ;  but  there  is  no  evidence  that  it 
was  regarded  as  imminent  in  its  proper  meaning  of  "threaten- 
ing or  about  to  occur"  by  German  merchants  at  that  time. 
.  .  .  What  the  hidden  anticipation  of  the  Government  of  the 
German  Empire  might  have  been  upon  the  subject  it  is  not  for 
me  to  speculate ;  but  I  may  express  my  humble  opinion  that  our 
intervention  in  the  war  upon  the  invasion  of  Belgium  in  defence 
of  treaty  obligations,  against  the  breach  of  such  obligations  by 
the  invaders,  was  a  complete  surprise  even  to  their  Govern- 
ment. .  .  . 

On  the  grounds  that  the  German  vendors  had  no  thought  of 
the  imminence  of  war  between  Germany  and  this  country,  and 
did  not  have  such  a  war  in  contemplation  at  any  time  while  the 
transactions  of  sale  were  taking  place  or  before  they  were  com- 
pleted, I  hold  that  the  sales  to  the  two  Dutch  merchants  were 
valid,  and  that  the  goods  were  not  confiscable.  And  I  decree  the 
release  to  them  respectively  of  the  net  proceeds  of  the  sale  of 
their  respective  goods,  which  are  now  in  Court. 


THE  BAWEAN.  591 

THE  BAWEAN. 

ADMIRALTY  DIVISION    (IN  PBIZE)    OF  THE  HIGH  COUBT  OF  JUSTICE  OF 

ENGLAND.     1917. 
Law  Reports   [1918]   P.  58. 

Action  for  condemnation  of  cargo.    .    .    . 

In  July,  1914,  the  German  steamship  Kleist  loaded  at  a 
Chinese  port  922  cases  of  tea  which  had  been  bought  by,  and 
were  consigned  to  the  order  of,  the  firm  of  Michaelsen  &  Sons, 
of  Bremen.  The  Kleist  was  bound  for  Hamburg,  but  in  con- 
sequence of  the  outbreak  of  war  she  took  refuge  on  August  7, 
1914,  in  the  Dutch  port  of  Padang  in  Sumatra,  where  she  re- 
mained. 

In  May,  1916,  the  cargo  being  still  on  board,  Michaelson  & 
Sons  sold  the  tea  to  the  claimants,  Goldschmidt  &  Zonen,  a  firm 
of  Dutch  merchants  at  Amsterdam,  and  it  was  transhipped  into 
the  Dutch  steamship  Bawean.  Fresh  bills  of  lading  were  made 
out  dated  September  6,  1916,  whereby  the  tea  was  consigned 
by  L.  E.  Tels  &  Co.,  the  claimants'  agents  in  Padang,  to  the 
claimants  at  London,  where  it  was  arranged  that  a  firm  of 
brokers,  Batten  &  Co.,  should  sell  it  for  them.  On  September 
19  the  claimants  sent  a  cheque  for  the  purchase  price  7119.68fL, 
to  Michaelsen  &  Sons,  who  acknowledged  its  receipt  on  Septem- 
ber 28.  It  appeared,  however,  from  other  documents  produced 
by  the  claimants  that  the  purchase  wras  really  made  for  the  joint 
account  of  the  claimants  and  L.  E.  Tels  &  Co.  On  December  12 
the  Bawean  arrived  in  London,  and  the  cases  of  tea  were  dis- 
charged and  warehoused  at  a  wharf  in  the  Port  of  London.  On 
January  24,  1917,  they  were  seized  as  prize  as  belonging  at  the 
time  of  capture  and  seizure  to  enemies  of  the  Crown.  .  .  . 

THE  PRESIDENT  (Sm  SAMUEL  EVANS).  .  .  .  Now  I  have 
to  ask  myself  two  questions — one  a  question  of  law  and  the  other 
a  question  of  fact. 

What  in  fact  was  the  meaning  and  object  of  the  plan  which 
was  adopted?  I  have  no  doubt  that  the  intention  of  Michael- 
sen  &  Sons,  and  a  very  natural  one,  was  to  save  something  from 
the  burning.  They  had  a  valuable  cargo  of  tea ;  it  might  become 
useless  if  they  kept  it  longer,  while  if  they  themselves  tran- 
shipped it  it  might  suffer  risk,  and,  as  I  have  said,  they  wanted 


592      WAR  RIGHTS  AS  TO  PRIVATE  PROPERTY. 

to  get  something  out  of  the  burning.  It  was  no  good  sending 
it  to  Germany;  so  they  went  to  Goldschmidt.  Goldschmidt  & 
Zonen  knew  the  whole  situation.  They  knew  that  the  Kleist  was 
a  North  German  Lloyd  ship.  They  knew  that  she  had  taken 
refuge  in  this  far-away  port  for  a  year  and  nine  months,  and 
they  were  minded,  I  have  no  doubt,  to  make  some  profit  for 
themselves ;  but  they  were  also  minded — I  do  not  like  to  use  the 
word  conspiracy,  but  I  do  not  know  that  it  is  too  strong — to 
enter  into  a  little  conspiracy  with  Michaelsen  &  Sons  whereby 
Michaelsen  &  Sons  would  get  some  benefit  out  of  this  property 
which  had  practically  become  abandoned,  and  they  would  also 
make  a  profit  for  themselves.  The  object  on  the  part  of  both, 
in  my  view,  was  to  defraud  the  belligerents  of  their  rights  of 
capture,  and  partially  to  assist  the  enemy  owners ;  and  with  that 
object,  and  by  the  arrangement  made  through  Tels  &  Co.,  the 
goods  were  transhipped  from  the  German  vessel  into  the  Bawean. 
There  was  a  communication  with  the  consuls,  and,  putting  it 
shortly,  the  result  of  the  communication  was  this:  Tels  &  Co. 
asked  for  the  consent  of  the  British  vice-consul  in  Padang,  and 
afterwards  of  the  British  consul  in  Batavia  to  the  shipment, 
and  afterwards  proceeded  as  if  consent  had  been  given.  That 
is  the  reading  in  plain  English  of  the  documents.  Tels  &  Co. 
must  have  represented  to  the  people  concerned  that  there  was 
no  objection  on  the  part  of  the  consul,  and  in  one  sense  that  was 
literally  true,  but  not  in  the  sense  in  which  it  was  accepted  by 
the  parties.  The  answer  of  the  consul  at  Batavia  to  the  vice- 
consul  or  his  deputy  at  Padang  was  this:  "Your  telegram  to- 
day, tea  to  London,  I  shall  not  object  to  shipment  since  system 
referred  to  in  my  despatch  of  29th  July  is  not  yet  in  operation. ' ' 
That  is  to  say,  I  will  take  no  active  step  to  prevent  it.  Then  it 
proceeds:  "The  question  as  to  whether  shipment  is  in  order 
rests  entirely  with  Tels  Company,  and  you  should  express  no 
official  opinion  in  matter  and  give  no  official  assistance  by  way  of 
certificate  or  otherwise." 

That  did  not  authorize  the  vice-consul  at  Padang  to  express 
the  opinion  as  coming  from  the  consul  at  Batavia  that  he  had 
no  objection  to  the  shipment.  The  statement  of  fact  in  the  tele- 
gram was  "I  am  not  going  to  take  any  steps  to  object,"  but  the 
instructions  given  by  the  consul  were  "You  must  express  no 
official  opinion."  To  say  that  he  had  no  objection  would  be  ex- 
pressing an  opinion.  In  this  way  the  goods  were  got  on  to  the 
Bawean  from  the  Kleist. 


THE  BAWEAN.  593 

Now  what  is  the  effect  in  law  ?  It  is  quite  clear  law  according 
to  the  Prize  Courts  in  this  country,  and  in  America  too  (and  I 
think  in  Germany  also),  that  goods  which  belong  to  an  enemy 
when  they  are  once  shipped,  and  therefore  become  subject  to  the 
risk  of  capture  at  the  hands  of  belligerents,  will  retain  their 
enemy  character  until  they  reach  their  destination,  and  no  trans- 
fer to  a  neutral  will  be  effective  so  as  to  defeat  the  right  of  cap- 
ture unless  the  transferee  has  actually  taken  possession  of  the 
goods.  Now  I  think  the  destination  of  these  goods,  in  the  sense 
of  that  principle  of  law,  was  the  destination  of  Hamburg.  In 
my  view  the  goods  could  not  be  transhipped  from  a  German 
vessel  on  to  another  vessel  with  the  destination  changed  so  as 
to  affect  the  rights  of  a  belligerent.  If  that  is  not  so,  the  effect 
of  it  would  be  that  at  the  beginning  of  the  war  all  cargoes  upon 
German  ships  which  might  then  be  afloat,  if  they  could  be  trans- 
ferred, might  legally  be  transferred  to  any  neutral,  and,  there- 
fore, all  these  cargoes  would  escape  capture.  That,  I  think,  is 
not  prize  law.  The  doctrine  has  been  laid  down  quite  clearly 
in  cases  beginning  with  The  Vrow  Margaretha,  1  C.  Rob.  336, 
and  extending  to  later  dates.  I  am  not  going  through  them ;  but 
perhaps  it  is  as  well  to  refer  to  two  cases.  In  The  Jan  Frederick, 
5  C.  Rob.  127,  131,  140,  the  question  was  fully  gone  into  by  Sir 
William  Scott,  and  he  lays  down  the  principles  in  general  terms. 
I  will  cite  a  few  passages  only.  "But  in  time  of  war  this  is 
prohibited  as  a  vicious  contract;  being  a  fraud  on  belligerent 
rights,  not  only  in  the  particular  transaction,  but  in  the  great 
facility  which  it  would  necessarily  introduce,  of  evading  those 
rights  beyond  the  possibility  of  detection.  It  is  a  road  that,  in 
time  of  war,  must  be  shut  up ;  for  although  honest  men  might  be 
induced  to  travel  it  with  very  innocent  intentions,  the  far 
greater  proportion  of  those  who  passed,  would  use  it  only  for 
sinister  purposes,  and  with  views  of  fraud  on  the  rights  of  the 
belligerent.  ...  If  the  contemplation  of  war  leads  immedi- 
ately to  the  transfer,  and  becomes  the  foundation  of  a  contract, 
that  would  not  otherwise  be  entered  into  on  the  part  of  the 
seller ;  and  this  is  known  to  be  so  done,  in  the  understanding  of 
the  purchaser,  though  on  his  part  there  may  be  other  concurrent 
motives  .  .  .  such  a  contract  cannot  be  held  good,  on  the 
same  principle  that  applies  to  invalidate  a  transfer  in  transitu 
in  time  of  actual  war."  And  in  discussing  the  question  as  to 
whether  the  contract  was  entered  into  bona  fide,  at  the  end  of 
the  judgment  Sir  William  Scott  pronounced  as  follows:  "But 


594      WAR  RIGHTS  AS  TO  PRIVATE  PROPERTY. 

taking  it  to  be  a  bona  fide  contract,  yet  being  formed  in  transitu, 
for  the  purjose  of  withdrawing  the  property  from  capture,  it 
does  intimately  partake  of  the  nature  of  those  contracts,  which 
have  in  the  repeated  decisions  of  this,  and  of  the  Supreme  Court, 
been  pronounced  null  and  invalid;  and  I  pronounce  this  prop- 
erty subject  to  condemnation."  The  ground  there  put  is  this: 
to  allow  such  transfers  while  the  goods  were  in  transit  after 
the  outbreak  of  war  (and  the  same  doctrine  applies  before  the 
outbreak  of  war  if  it  is  imminent,  or  if  the  transaction  takes 
place  in  contemplation  of  war)  would  be  to  encourage  frauds 
on  the  rights  of  capture  by  belligerents.  You  cannot  always 
prove  the  object  in  a  man's  mind.  I  have  stated  what,  in  the 
inference  I  draw,  was  one  of  the  objects  Goldschmidt  &  Zonen 
had  in  view  in  this  case,  but  I  cannot  say  that  there  is  an  abso- 
lute proof  of  it.  But  in  order  to  close  any  investigation  in  the 
difficult  matter  of  determining  motives  the  law  has  pronounced 
that  such  transfers  as  this  cannot  be  valid  during  war  because 
it  would  be  so  easy  thereby  to  defeat  the  rights  of  belligerents. 

There  is  only  one  other  case  that  I  want  to  refer  to,  namely, 
The  Carl  Walter,  (1802)  4  C.  Rob.  207.  I  cite  that  case  because 
it  illustrates  the  same  principle  and  shows  that  it  does  not  mat- 
ter that  the  goods  have  been  changed  from  one  ship  to  another. 
Nor,  in  my  view,  does  it  matter  that  after  the  change  of  the 
goods  from  an  enemy  vessel  to  another  constructive  possession 
is  taken  by  the  master  of  the  vessel  and  a  destination  for  some 
other  country  substituted  in  the  hope  that  the  goods  would  not 
be  seized  before  their  actual  receipt  or  delivery.  On  both  these 
grounds — the  ground  of  my  inference  as  to  the  facts,  and  on 
the  question  of  law — I  hold  that  this  transfer  to  Messrs.  Gold- 
schmidt &  Zonen  was  invalid,  and  that  the  goods  still  partook 
of  an  enemy  character  at  the  time  that  they  were  upon  the  sea 
after  they  were  transferred  to  the  Dutch  vessel  and  when  they 
were  seized. 

One  other  circumstance  must  be  adverted  to.  Counsel  for  the 
claimants  contended  that  they  were  entitled  to  some  protection 
oecause  the  goods  were  under  the  Dutch  flag.  In  my  view  of  the 
case  the  Declaration  of  Paris  does  not  apply ;  but  in  any  event, 
in  the  circumstances  of  this  case,  the  Dutch  flag  had  ceased  to 
protect  these  goods.  They  were  in  port  at  the  time  they  were 
seized,  and,  according  to  previous  judgments  in  this  Court, 
if  the  Declaration  of  Paris  ever  was  a  protection  to  this  vessel 
(and  I  have  expressed  my  opinion  that  it  was  not)  it  had 


NOTE.  595 

ceased  to  have  any  such  effect  at  the  time  the  goods  were  seized 
in  port,  after  they  were  discharged  from  the  Dutch  ship,. 
I,  therefore,  condemn  these  goods  or  their  proceeds. 

NOTE. — The  transfer  of  enemy  ships  either  in  anticipation  of  war 
or  in  the  midst  of  war  offers  so  many  opportunities  for  fraud  that 
such  transactions  are  regarded  by  prize  courts  with  great  suspicion. 
In  the  following  cases  vessels  which  had  been  transferred  to  neutrals 
were  condemned  for  the  reasons  indicated:  The  Sechs  Geschwistern 
(1801),  4  C.  Robinson,  100  (seller  retained  right  to  repurchase  after 
the  war);  The  Vigilantia  (1798),  1  C.  Robinson,  1,  The  Embden 
(1798),  1  Ib.  16,  The  Ernst  Merck  (1854),  Spinks,  98  (vessel  trans- 
ferred to  a  neutral  continued  in  former  trade);  The  Bernon  (1798), 
1  C.  Robinson,  102,  The  Jemmy  (1801),  4  Ib.  31,  The  Andromeda 
(1864),  2  Wallace,  481  (management  of  vessel  retained  by  former 
owner);  The  General  Hamilton  (1805),  6  C»  Robinson,  61  (transfer 
of  enemy  vessel  in  a  blockaded  port  to  a  neutral) ;  The  Johann 
Christoph  (1854),  Spinks,  60,  The  Rapid  (1854),  Ib.  80  (no  proof  of 
payment  of  purchase  price);  The  Tommi  and  The  Rothersand  (1914), 
L.  R.  [1914]  P.  251  (vessel  still  flying  an  enemy  flag).  On  the  other 
hand,  in  The  Ariel  (1857),  11  Moore,  P.  C.  119,  a  sale  which  was  ad- 
mittedly made  in  contemplation  of  war  was  held  valid  because  the 
transfer  was  undoubtedly  bona  fide.  The  decisions  in  The  Baltica 
(1857),  11  Moore,  P.  C.  141  and  The  Bawean  (1917),  L.  R.  [1918]  P. 
58  were  analyzed  and  distinguished  in  The  Vesta  (1921),  L.  R,  [1921] 
1  A.  C.  774,  and  both  in  that  case  and  in  The  Kronprinsessen  Mar- 
gareta  (1920),  L.  R.  [1921]  1  A.  C.  486,  the  validity  of  the  transfer 
of  an  enemy  ship  or  cargo  to  a  neutral  is  made  to  depend  not  only 
upon  the  fact  that  the  former  owner  has  parted  with  all  his  interest 
but  that  there  has  been  an  actual  delivery,  as  contrasted  with  a  trans- 
fer by  documents,  to  the  buyer. 

The  sale  to  a  neutral  of  an  enemy  ship  of  war  lying  in  a  neutral 
port  is  invalid,  The  Minerva  (1807),  6  C.  Robinson,  396,  even  though 
It  has  been  dismantled  and  fitted  up  as  a  merchant  ship,  The  Georgia 
(1867),  7  Wallace,  32. 

France,  Germany  and  Russia  have  heretofore  treated  all  transfers 
of  enemy  vessels  made  after  the  outbreak  of  war  as  absolutely  in- 
valid. Austria-Hungary  and  Japan  have  followed  the  Anglo-American 
rule  as  to  the  recognition  of  transfers  which  can  be  shown  to  be  bona 
fide.  But  the  Great  War  has  cut  across  this  alignment  and  has  re- 
sulted in  the  curious  situation  that  whether  a  transfer  is  recognized 
as  valid  or  not  depends  on  which  member  of  a  group  of  allied  states 
passes  upon  it.  Thus  the  Dacia,  a  German  vessel  lying  in  an  Ameri- 
can port  and  purchased  by  an  American  citizen  after  the  outbreak  of 
war  and  admitted  to  American  registry,  would  be  regarded  under  the 
old  British  rule  as  an  American  vessel  since  there  was  nothing  in  the 
facts  to  impeach  the  good  faith  of  the  transaction  and  the  sale  had 
been  completed  by  delivery  to  the  purchaser.  But  the  vessel  was 
captured  by  a  French  cruiser  and  was  condemned  as  a  German  ves- 
sel by  the  French  Prize  Court.  See  the  decision  in  Am.  Jour.  Int.  Law. 


596      WAR  RIGHTS  AS  TO  PRIVATE  PROPERTY. 

IX,  1015.  The  Anglo-American  rule  whereby  the  validity  of  a  trans- 
fer Is  determined  by  its  bona  fide  character  is  preferable  to  the  rule 
followed  by  France,  Germany  and  Russia,  but  it  is  eminently  desirable 
that  the  nations  should  be  in  agreement  upon  some  rule.  The  Declara- 
tion of  London,  Art.  56,  provides  that  a  transfer  after  the  opening  of 
hostilities  is  void,  "unless  it  is  proved  that  such  transfer  was  not  made 
in  order  to  evade  the  consequence  which  the  enemy  character  of  the 
vessel  would  involve."  In  its  practical  application  this  amounts  al- 
most to  an  adoption  of  the  French  rule,  for  most  of  the  transfers  of 
vessels  from  enemy  to  neutral  flags  after  the  outbreak  of  war  are  for 
the  purpose  of  evading  the  consequences  of  enemy  character.  Fur- 
thermore, to  throw  upon  the  purchaser  the  burden  of  proving  an  in- 
nocent state  of  mind  on  the  part  of  the  seller  at  the  time  of  the 
transfer — an  event  which  may  have  happened  many  months  before  the 
capture — is  to  require  a  practical  impossibility.  If  the  purchaser  can 
show  that  there  was  a  genuine  transfer  in  which  the  vendor  parted 
with  all  his  interest  in  the  vessel  and  that  the  transfer  of  ownership 
was  completed  by  delivery,  the  purchaser's  title  should  be  everywhere 
recognized.  In  The  Edna  (1919),  L.  R.  [1919]  P.  157,  Lord  Sterndale 
considered  the  case  of  a  vessel  which  had  been  transferred  from  the 
Mexican  to  the  German  flag  just  before  the  outbreak  of  war.  Im- 
mediately after  hostilities  began,  it  was  reconveyed  to  a  Mexican 
company  controlled  by  Germans,  who  sold  it  to  an  American  corpora- 
tion. Lord  Sterndale  held  that  as  the  purchase  was  bona  fide  on  the 
part  of  the  American  corporation,  it  was  not  a  transfer  made  in  order 
to  avoid  the  consequences  to  which  an  enemy  vessel  would  be  ex- 
posed. On  appeal  the  Judicial  Committee  was  also  convinced  that 
there  had  been  a  complete  and  bona  fide  transfer  and  ordered  the 
vessel's  release,  [1921]  1  A.  C.  735. 

For  an  excellent  treatment  of  the  subject  see  J.  W.  Garner,  "The 
Transfer  of  Merchant  Vessels  from  Belligerent  to  Neutral  Flags," 
Am.  Law  Rev.  XLIX,  321.  See  also  Int.  Law  Topics,  1906,  21;  Ib.  1913, 
155;  Int.  Law  Situations,  1910,  108;  Russell  T.  Mount,  "Prize  Cases 
in  the  English  Courts  Arising  out  <?f  the  Present  War,"  Col.  Law  Rev. 
XV,  316,  567;  Cobbett,  Cases  and  Opinions,  II,  144,  163;  Hyde,  II,  551, 
564;  Moore,  Digest,  VII,  404. 


SECTION  4.    THE  RIGHTS  OP  INTERMEDIATE  PARTIES. 
THE  ODESSA. 

JUDICIAL,  COMMUTE  OF  THE  PETVT  COUNCIL  OF  GREAT  BETTAIN.    1915. 
Law  Reports  [1916]   1  A.  C.  145. 

Consolidated  Appeals  from  two  decrees  of  the  Prize  Court 
(England)     .     .     .    reported  as  to  the  Odessa,   [1915]   P.  52. 


THE  ODESSA.  59? 

[All  that  pertains  to  the  "Woolston  is  omitted.]  The  appellants 
in  both  appeals  were  .  .  .  bankers  carrying  on  business  in 
London.  .  .  .  The  cargo  [of  the  Odessa],  consisting  of 
nitrate  of  soda,  was  sold  by  a  Chilean  linn  to  a  German  company 
carrying  on  business  at  Hamburg,  and  was  shipped  in  May,  1914, 
"bound  for  Channel  for  orders."  In  June,  1914,  the  appellants 
accepted  bills  of  exchange  for  41,153Z.  Is.  5d.  (the  price  of  the 
cargo)  drawn  by  the  sellers,  and  as  security  received  and  held 
the  bill  of  lading  which  made  the  cargo  deliverable  to  them  or 
to  their  assigns.  On  August  4,  1914,  while  the  ship  was  on  her 
voyage,  war  broke  out  between  Great  Britain  and  Germany,  and 
on  August  19,  1914,  the  ship  was  captured  at  sea.  A  writ  was 
issued  by  the  Procurator-General  claiming  that  the  ship  and 
cargo  belonged  to  enemies  of  the  Crown  and  were  liable  to  con- 
fiscation as  lawful  prize.  The  appellants  claimed  the  cargo  alleg- 
ing that  it  was  their  property  and  /  or  as  holders  of  the  bill  of 
lading  for  full  value. 

The  President  of  the  Probate,  Divorce  and  Admiralty  Divi- 
sion (Sir  Samuel  Evans),  .  .  .  held  that  the  cargo  was  the 
property  of  the  German  company  and  that  the  appellants  were 
merely  pledgees  and  not  entitled  to  have  the  cargo  released  to 
them ;  he  therefore  made  a  decree  condemning  the  cargo  as  law- 
ful prize. 

LORD  MERSEY.  .  .  ,  Their  Lordships  are  of  opinion  that 
the  learned  President  was  right  in  the  inferences  which  he  drew 
from  the  facts,  namely,  that  the  general  property  in  the  cargo 
was  in  the  German  company,  and  that  the  appellants  were 
merely  pledgees  thereof  at  the  date  of  the  seizure.  .  .  .  The 
appellants  indeed  did  not  dispute  the  correctness  of  these  in- 
ferences, but  what  they  say  is  that,  though  correct,  they  do  not 
justify  a  decree  which  has  the  effect  of  forfeiting  their  rights  as 
pledgees.  Thus  the  question  in  the  appeal  is  whether  in  case 
of  a  pledge  such  as  existed  here  a  Court  of  Prize  ought  to  con- 
demn the  cargo,  and,  if  so,  whether  it  should  direct  the  appel- 
lants' claim  to  be  paid  out  of  the  proceeds  to  arise  from  the  sale 
thereof. 

It  is  worth  while  to  recall  generally  the  principles  which  have 
hitherto  guided  British  Courts  of  Prize  in  dealing  with  a  claim 
by  a  captor  for  condemnation.  All  civilized  nations  up  to  the 
present  time  have  recognized  the  right  of  a  belligerent  to  seize, 
with  a  view  to  condemnation  by  a  competent  Court  of  Prize, 


598      WAR  RIGHTS  AS  TO  PRIVATE  PROPERTY. 

enemy  ships  found  on  the  high  seas  or  in  the  belligerent 's  terri- 
torial waters  and  enemy  cargoes.  But  seizure  does  not,  accord- 
ing to  British  prize  law,  affect  the  ownership  of  the  thing  seized. 
Before  that  can  happen  the  thing  seized,  be  it  ship  or  goods, 
must  be  brought  into  the  possession  of  a  lawfully  constituted 
Court  of  Prize,  and  the  captor  must  then  act  for  and  obtain  its 
condemnation  as  prize.  "The  suit  may  be  initiated  by  the  repre- 
sentative of  the  capturing  State,  in  this  country  by  the  Procura- 
tor-General. It  is  a  suit  in  rem,  and  the  function  of  the  Court 
is  to  inquire  into  the  national  character  of  the  thing  seized.  If 
it  is  found  to  be  of  enemy  character,  the  duty  of  the  Court  is  to 
condemn  it;  if  not,  then  to  restore  it  to  those  entitled  to  its 
possession.  The  question  of  national  character  is  made  to  de- 
pend upon  the  ownership  at  the  date  of  seizure,  and  is  to  be 
determined  by  evidence.  The  effect  of  a  condemnation  is  to 
divest  the  enemy  subject  of  his  ownership  as  from  the  date  of 
the  seizure  and  to  transfer  it  as  from  that  date  to  the  Sovereign 
or  to  his  grantees.  The  thing — the  res — is  then  his  for  him  to 
deal  with  as  he  thinks  fit,  and  the  proceeding  is  at  an  end. 

As  the  right  to  seize  is  universally  recognized,  so  also  is  the 
title  which  the  judgment  of  the  Court  creates.  The  judgment  is 
of  international  force,  and  it  is  because  of  this  circumstance  that 
Courts  of  Prize  have  always  been  guided  by  general  principles 
of  law  capable  of  universal  acceptance  rather  than  by  considera- 
tions of  special  rules  of  municipal  law.  Thus  it  has  come  about 
that  in  determining  the  national  character  of  the  thing  seized 
the  Courts  in  this  country  have  taken  ownership  as  the  criterion, 
meaning  by  ownership  the  property  or  dominium  as  opposed  to 
any  special  rights  created  by  contracts  or  dealings  between  in- 
dividuals, without  considering  whether  these  special  rights  are 
or  are  not,  according  to  the  municipal  law  applicable  to  the  case, 
proprietary  rights  or  otherwise.  The  rule  by  which  ownership 
is  taken  as  the  criterion  is  not  a  mere  rule  of  practice  or  con- 
venience ;  it  is  not  a  rule  of  thumb.  It  lays  down  a  test  capable 
of  universal  application,  and  therefore  peculiarly  appropriate 
to  questions  with  which  a  Court  of  Prize  has  to  deal.  It  is  a 
rule  not  complicated  by  considerations  of  the  effect  of  the  numer- 
ous interests  which  under  different  systems  of  jurisprudence  may 
be  acquired  by  individuals  either  in  or  in  relation  to  chattels. 
All  the  world  knows  what  ownership  is,  and  that  it  is  not  lost  by 
the  creation  of  a  security  upon  the  thing  owned.  If  in  each 
case  the  Court  of  Prize  had  to  investigate  the  municipal  law  of 


THE  ODESSA.  599 

a  foreign  country  in  order  to  ascertain  the  various  rights  and 
interests  of  every  one  who  might  claim  to  be  directly  or  indi- 
rectly interested  in  the  vessel  or  goods  seized,  and  if  in  addition 
it  had  to  investigate  the  particular  facts  of  each  case  (as  to 
which  it  would  have  few,  if  any,  means  of  learning  the  truth), 
the  Court  would  be  subject  to  a  burthen  which  it  could  not  well 
discharge. 

There  is  a  further  reason  for  the  adoption  of  the  rule.  If 
special  rights  of  property  created  by  the  enemy  owner  were 
recognized  in  a  Court  of  Prize,  it  would  be  easy  for  such  owner 
to  protect  his  own  interests  upon  shipment  of  the  goods  to  or 
from  the  ports  of  his  own  country.  He  might,  for  example,  in 
every  case  borrow  on  the  security  of  the  goods  an  amount  ap- 
proximating to  their  value  from  a  neutral  lender  and  create  in 
favour  of  such  lender  a  charge  or  lien  or  mortgage  on  the  goods 
in  question.  He  would  thus  stand  to  lose  nothing  in  the  trans- 
action, for  the  proceeds  of  the  goods  if  captured  would,  if 
recovered  by  the  lender,  have  to  be  applied  by  him  in  discharge 
of  his  debt.  Again,  if  a  neutral  pledgee  were  allowed  to  use  the 
Prize  Court  as  a  means  of  obtaining  payment  of  his  debt  instead 
of  being  left  to  recover  it  in  the  enemy 's  Courts,  the  door  would 
be  opened  to  the  enemy  for  obtaining  fresh  banking  credit  for 
his  trade,  to  the  great  injury  of  the  captor  belligerent. 

Acting  upon  the  principle  of  this  rule-Courts  of  Prize  in  this 
country  have  from  before  the  days  of  Lord  Stowell  refused  to 
recognize  or  give  effect  to  any  right  in  the  nature  of  a  "special" 
property  or  interest  or  any  mortgage  or  contractual  lien  created 
by  the  enemy  whose  vessel  or  goods  have  been  seized.  Liens  aris- 
ing otherwise  than  by  contract  stand  on  a  different  footing  and 
involve  different  considerations ;  but  even  as  to  these  it  is  doubt- 
ful whether  the  Court  will  give  effect  to  them.  Where  the  goods 
have  been  increased  in  value  by  the  services  which  give  rise  to 
the  possessory  lien,  it  appears  to  have  been  the  practice  of  this 
Court  to  make  an  equitable  allowance  to  the  national  or  neutral 
lien-holder  in  respect  of  such  services.  In  the  judgment  in  The 
Frances,  8  Cranch,  418,  speaking  of  freight,  it  is  said:  "On  the 
one  hand  the  captor  by  stepping  into  the  shoes  of  the  enemy 
owner  of  the  goods  is  personally  benefited  by  the  labour  of  a 
friend,  and  ought  in  justice  to  make  him  proper  compensation, 
and  on  the  other,  the  shipowner,  by  not  having  carried  the  goods 
to  the  place  of  their  destination,  and  this  in  consequence  of  the 


600      WAR  RIGHTS  AS  TO  PRIVATE  PROPERTY. 

act  of  the  captor,  would  be  totally  without  remedy  to  recover  his 
freight  against  the  owner  of  the  goods." 

It  is,  however,  unnecessary  to  deal  with  the  question  of  liens 
arising  apart  from  contract,  the  present  case  being  one  of  pledge 
founded  on  a  contract  made  with  the  enemy. 

When  the  authorities  are  examined  it  will  be  found  that  they 
bear  out  the  view  that  enemy  ownership  is  the  true  criterion 
of  the  liability  to  condemnation.  The  case  of  The  Tobago,  5  C. 
Robinson,  218,  is  in  point.  There  the  claimant  was  a  British 
subject.  In  time  of  peace  he  had  honestly  advanced  money  to  a 
French  shipowner  to  enable  the  latter  to  repair  his  ship  which 
was  disabled,  and  by  way  of  security  had  taken  from  the  owner 
a  bottomry  bond.  Afterwards  war  broke  out  with  France  and 
the  vessel  was  captured.  In  the  proceedings  in  the  Prize  Court 
for  condemnation  the  holder  of  the  bottomry  bond  asked  that  his 
security  might  be  protected,  but  Lord  Stowell  (then  Sir  William 
Scott),  after  observing  that  the  contract  of  bottomry  was  one 
which  the  Admiralty  Court  regarded  with  great  attention  and 
tenderness,  went  on  to  ask:  "But  can  the  Court  recognize 
bonds  of  this  kind  as  titles  of  property  so  as  to  give  persons  a 
right  to  stand  in  judgment  and  demand  restitution  of  such  in- 
terests in  a  Court  of  Prize?"  And  he  states  that  it  had  never 
been  the  practice  to  do  so.  He  points  out  that  a  bottomry  bond 
works  no  change  of  property  in  the  vessel  and  says :  "If  there 
is  no  change  of  property  there  can  be  no  change  of  national 
character.  Thpse  lending  money  on  such  security  take  this 
security  subject  to  all  the  chances  incident  to  it,  and  amongst 
the  rest,  the  chances  of  war."  .  .  .  [The  learned  judge  here 
reviews  the  authorities.] 

The  appellants  urged  that  if  the  Court  now  applies  the  prin- 
ciples illustrated  by  the  cases  above  referred  to  very  serious 
injustice  will  be  done  to  and  serious  loss  incurred  by  neutrals 
or  subjects  who,  before  the  commencement  of  the  war  and  in  the 
normal  course  of  business,  have  made  advances  against  bills  of 
lading.  It  is  to  be  observed  that  similar  injustice  and  loss, 
though  possibly  on  a  less  extensive  scale,  must  have  been  oc- 
casioned by  the  application  of  the  same  rules  in  the  eighteenth 
and  early  nineteenth  centuries,  and  similar  arguments  were  in 
fact  addressed  to  Lord  Stowell  as  a  reason  why  they  should  not 
be  applied  in  individual  cases.  The  reason  why  such  arguments 
cannot  be  sustained  is  fairly  obvious.  War  must  in  its  very  na- 
ture work  hardship  to  individuals,  and  in  laying  down  rules  to 


NOTE.  601 

be  applied  internationally  to  circumstances  arising  out  of  a 
state  of  war  it  would  be  impossible  to  avoid  it.  All  that  can 
be  done  is  to  lay  down  rules  which,  if  applied  generally  by 
civilized  nations,  will,  without  interfering  with  the  belligerent 
right  of  capture,  avoid  as  far  as  may  be  any  loss  to  innocent 
parties.  It  is  precisely  because  the  recognition  of  liens  or  other 
rights  arising  out  of  private  contracts  would  so  seriously  in-, 
terfere  with  the  belligerent  rights  of  capture  that  the  Courts 
have  refused  to  recognize  such  liens  or  rights  in  spite  of  the 
hardship  which  may  be  occasioned  to  individuals  from  such 
want  of  recognition.  .  .  . 

For  the  foregoing  reasons  their  Lordships  will  humbly  ad- 
vise His  Majesty  that  the  appeal  should  be  dismissed.  .  .  . 

NOTE. — It  may  be  questioned  whether  the  court  is  correct-  in  hold- 
ing in  The  Odessa  that  the  neutral  appellants  were  merely  pledgees 
while  the  legal  ownership  was  vested  in  the  German  buyer.  For 
a  similar  confusion  see  The  Orteric  (1920),  L.  R.  [1920]  A.  C.  724. 
While  the  neutral's  title  was  for  security  only,  nevertheless  it  was 
a  legal  title,  and  it  was  so  decided  by  the  Italian  Prize  Court  in  The 
Moravia  (1917),  Gazzeta  Ufficiale,  Jan.  29,  1917,  and  by  the  British 
Prize  Court  in  The  Miramichi  (1914),  L.  R.  [1915]  P.  71.  If  the 
court  is  correct  in  holding  that  the  neutral  appellant  was  merely  a 
pledgee  the  exposition  of  his  rights  in  a  prize  court  is  unexceptional. 
See  comments  on  the  English  decisions  by  Professor  Samuel  Williston 
in  Harvard  Law  Review,  XXXIV,  756-758. 

For  the  discussion  of  claims  of  various  kinds  set  up  by  intermediate 
parties  to  the  ship  or  cargo,  see  The  Aina  (1854),  Spinks,  8,  The  Hamp- 
ton (1866),  5  Wallace,  372,  The  Marie  Glaeser  (1914),  L.  R.  [1914] 
P.  218  (mortgages);  The  Vrou  Sarah  (1803),  1  Dodson,  355n.,  The 
Battle  (1867),  6  Wallace  498,  The  Russia  (1904),  Takahashi,  557 
(claims  for  necessaries  and  disbursements) ;  The  Sechs  Geschwistern 
(1801),  4  C.  Robinson,  100,  Tlie  Marianna  (1805),  6  Ib.  24,  The  Ida 
(1854),  Spinks,  26,  The  Ariel  (1857),  11  Moore,  P.  C.  119  (liens  for 
debt);  The  Frances  (1814),  8  Cranch,  418  (factor's  lien);  The  Ni- 
gretia  (1905),  Takahashi,  551  (salvage);  The  Mary  and  Susan  (1816), 
1  Wheaton,  25,  The  Lynchburg  (1861),  Blatchford,  3,  The  Amy  War- 
wick (1862),  2  Sprague,  150,  The  Carlos  F.  Roses  (1900),  177  U.  S. 
655  (assignment  of  bill  of  lading);  The  Tobago  (1804),  5  C.  Robin- 
son, 218  (bottomry  bond) ;  The  Emil  (1915),  1  Br.  &  Col.  P.  C.  257 
(mortgagee  of  captor's  nation);  The  Linaria  (1915),  31  T.  L.  R.  396 
(advance  on  goods  after  arrival);  The  Urna  (1920),  L.  R.  [1920] 
A.  C.  899  (advances  by  selling  agent). 

But  a  neutral  carrier  may  have  a  lien  for  freight  on  enemy's  goods, 
The  Hoop  (1799),  1  C.  Robinson,  196;  The  Hazard  (1815),  9  Cranch, 
205;  The  Ship  Societe  (1815),  9  Ib.  209,  The  Antonia  Johanna  (1816). 
1  Wheaton,  159.  But  if  the  goods  are  contraband  or  if  the  vessel  is 


602      WAR  RIGHTS  AS  TO  PRIVATE  PROPERTY. 

engaged  in  the  coasting  trade  of  the  enemy,  no  such  lien  is  recog- 
nized, The  Emanuel    (1799),  1  C.  Robinson,  296. 


SECTION  5.    EXEMPTIONS  FROM  CAPTURE. 

THE  PAQUETE  HABANA. 
THE  LOLA. 

StJPBEME  COUET  OF  THE   UNITED   STATES.      1900. 

175  U.  S.  677. 

Appeals  from  the  District  Court  of  the  United  States  for  the 
Southern  District  of  Florida. 

[The  Paquete  Habana  and  the  Lola,  fishing  smacks  belonging 
to  Spanish  subjects  resident  in  Cuba,  on  returning  to  Havana 
from  a  fishing  expedition,  were  captured  by  the  American  block- 
ading squadron,  taken  to  Key  West,  libelled,  condemned,  and 
sold.  From  the  decree  of  condemnation  this  appeal  was  taken  on 
the  ground  that  such  vessels  are  by  law  exempt  from  seizure.] 

MR.  JUSTICE  GRAY  delivered  the  opinion  of  the  Court.     .     .     . 

By  an  ancient  usage  among  civilized  nations,  beginning  cen- 
turies ago  and  gradually  ripening  into  a  rule  of  international 
law,  coast  fishing  vessels,  pursuing  their  vocation  of  catching 
and  bringing  in  fresh  fish  have  been  recognized  as  exempt,  with 
their  cargoes  and  crews,  from  capture  as  prize  of  war. 

This  doctrine,  however,  has  been  correctly  contested  at  the 
bar;  and  no  complete  collection  of  the  instances  illustrating  it 
is  to  be  found,  so  far  as  we  are  aware,  in  a  single  published 
work.  ...  It  is  therefore,  worth  the  while  to  trace  the 
history  of  the  rule,  from  the  earliest  accessible  sources,  through 
the  increasing  recognition  of  it,  with  occasional  setbacks,  to 
what  we  may  now  justly  consider  as  its  final  establishment  in 
our  own  country  and  generally  throughout  the  civilized  world. 
.  .  .  [Here  follows  an  elaborate  review  of  the  authorities.] 

This  review  of  the  precedents  and  authorities  on  the  subject 
appears  to  us  abundantly  to  demonstrate  that  at  the  present 
day,  by  the  general  consent  of  the  civilized  nations  of  the  world, 
and  independently  of  any  express  treaty  or  other  public  act,  it 
is  an  established  rule  of  international  law,  founded  on  considera- 


THE  PAQUETE  HABANA.         603 

tions  of  humanity  to  a  poor  and  industrious  order  of  men,  and 
of  the  mutual  convenience  of  belligerent  states,  that  coast-fishing 
vessels,  with  their  implements  and  supplies,  cargoes  and  crews, 
unarmed  and  honestly  pursuing  their  peaceful  calling  of  catch- 
ing and  bringing  in  fresh  fish,  are  exempt  from  capture  as  prize 
of  war. 

The  exemption,  of  course,  does  not  apply  to  coast  fishermen 
or  their  vessels,  if  employed  for  a  warlike  purpose,  or  in  such 
a  way  as  to  give  aid  or  information  to  the  enemy;  nor  when 
military  or  naval  operations  create  a  necessity  to  which  all  pri- 
vate interests  must  give  way. 

Nor  has  the  exemption  been  extended  to  ships  or  vessels  em- 
ployed on  the  high  sea  in  taking  whales  or  seals,  or  cod  or  other 
fish,  which  are  not  brought  fresh  to  market,  but  are  salted  or 
otherwise  cured  and  made  a  regular  article  of  commerce. 

This  rule  of  international  law  is  one  which  prize  courts,  ad- 
ministering the  law  of  nations,  are  bound  to  take  judicial  notice 
of,  and  to  give  effect  to,  in  the  absence  of  any  treaty  or  other 
public  act  of  their  own  government  in  relation  to  the  matter. 

Calvo,  in  a  passage  already  quoted,  distinctly  affirms  that  the 
exemption  of  coast-fishing  vessels  from  capture  is  perfectly 
justiciable,  or,  in  other  words,  of  judicial  jurisdiction  or  cog- 
nizance. Calvo,  §  2368.  Nor  are  judicial  precedents  wanting  in 
support  of  the  view  that  this  exemption,,  or  a  somewhat  analo- 
gous one,  should  be  recognized  and  declared  by  a  prize  court. 

By  the  practice  of  all  civilized  nations,  vessels  employed  only 
for  the  purposes  of  discovery  or  science  are  considered  as  ex- 
empt from  the  contingencies  of  war,  and  therefore  not  subject 
to  capture.  It  has  been  usual  for  the  government  sending  out 
such  an  expedition  to  give  notice  to  other  powers;  but  it  is  not 
essential.  1  Kent  Com.  91,  note ;  •  Halleck,  c.  20,  §  22;  Calvo, 
§  2376;  Hall,  §  138. 

In  1813,  while  the  United  States  were  at  war  with  England, 
an  American  vessel,  on  her  voyage  from  Italy  to  the  United 
States,  was  captured  by  an  English  ship,  and  brought  into  Hali- 
fax in  Nova  Scotia,  and  with  her  cargo  condemned  as  lawful 
prize  by  the  Court  of  Vice  Admiralty  there.  But  a  petition  for 
the  restitution  of  a  case  of  paintings  and  engravings  which  had 
been  presented  to  and  were  owned  by  the  Academy  of  Arts  in 
Philadelphia,  was  granted  by  Dr.  Croke,  the  judge  of  that  Court, 
who  said :  ' '  The  same  law  of  nations,  which  prescribes  that  all 
property  belonging  to  the  enemy  shall  be  liable  to  confiscation, 


604      WAR  RIGHTS  AS  TO  PRIVATE  PROPERTY. 

has  likewise  its  modifications  and  relaxations  of  that  rule.  The 
arts  and  sciences  are  admitted,  amongst  all  civilized  nations,  as 
forming  an  exception  to  the  severe  rights  of  warfare,  and  as 
entitled  to  favor  and  protection.  They  are  considered  not  as  the 
peculium  of  this  or  of  that  nation,  but  as  the  property  of  man- 
kind at  large,  and  as  belonging  to  the  common  interests  of  the 
whole  species."  And  he  added  that  there  had  been  "innumer- 
able cases  of  the  mutual  exercise  of  this  courtesy  between  na- 
tions in  former  wars."  The  Marquis  de  Somerueles,  Stewart 
Adm.  (Nova  Scotia),  445,  482. 

In  1861,  during  the  War  of  the  Rebellion,  a  similar  decision 
was  made,  in  the  District  Court  of  the  United  States  for  the 
Eastern  District  of  Pennsylvania,  in  regard  to  two  cases  of  books 
belonging  to  and  consigned  to  a  university  in  North  Carolina. 
Judge  Cadwalader,  in  ordering  these  books  to  be  liberated  from 
the  custody  of  the  marshal,  and  restored  to  the  agent  of  the 
university,  said:  "Though  this  claimant,  as  the  resident  of  a 
hostile  district,  would  not  be  entitled  to  restitution  of  the  sub- 
ject of  a  commercial  adventure  in  books,  the  purpose  of  the 
shipment  in  question  gives  to  it  a  different  character.  The 
United  States,  in  prosecuting  hostilities  for  the  restoration  of 
their  constitutional  authority,  are  compelled  incidentally  to 
confiscate  property  captured  at  sea,  of  which  the  proceeds  would 
otherwise  increase  the.  wealth  of  that  district.  But  the  United 
States  are  not  at  war  with  literature  in  that  part  of  their  terri- 
ory. "  He  then  referred  to  the  decision  in  Novo  Scotia,  and  to 
the  French  decisions  upon  cases  of  fishing  vessels,  as  precedents 
for  the  decree  which  he  was  about  to  pronounce;  and  he  added 
that,  without  any  such  precedents,  he  should  have  had  no  diffi- 
culty in  liberating  these  books.  The  Amelia,  4  Philadelphia, 
417.  .  .  . 

Ordered,  that  the  decree  of  the  District  Court  be  reversed.  .  .  . 

MR.  CHIEF  JUSTICE  FULLER,  with  whom  concurred  MR.  JUS- 
TICE HARLAN  and  MR.  JUSTICE  MCKENNA,  dissenting.  .  .  . 

NOTE. — As  to  the  exemption  of  fishing  vessels  from  capture  In  time 
of  war  see  U.  S.  Naval  Instructions  Governing  Maritime  Warfare, 
June  30,  1917,  no.  63  and  no.  65;  Prize  Regulations  of  Japan,  art.  35,  ~ 
2  Hurst  and  Bray,  430;  Prize  Code  of  the  German  Empire,  sec.  6; 
The  Michael  (Japan,  1905),  2  Hurst  and  Bray,  80;  The  Alexander 
(Japan,  1905),  2  Ib.  86.  For  early  English  practice  see  The  Young 
Jacob  and  Johanna  (1798),  1  C.  Robinson,  20,  and  The  Liesbet  van 
den  Toll  (1804),  5  C.  Robinson,  283.  For  the  present  English  prac- 
tice see  The  Berlin  (1914),  L.  R.  [1914]  P.  265. 


NOTE.  605 

As  to  other  exemptions  from  capture  see  The  Daifjie  (1800),  3  C. 
Robinson,  139;  La  Gloire  (1804),  5  Ib.  198;  The  Mary  (1804),  5  Ib. 
200;  The  Carolina  (1807),  6  Ib.  336;  The  Rose  in  Bloom  (1811),  1 
Dodson,  57;  The  William  Penn  (1815),  Federal  Cases,  no.  3372  (cartel 
ships);  The  Aryol  (Japan,  1905),  Takahashi,  620  (hospital  ships); 
The  Paklat  (Hong-Kong,  1915),  1  Br.  &  Col.  P.  C.  515  (philanthropic 
mission).  A  ship  forfeits  its  exemption  if  it  performs  any  service  of 
a  military  nature  or  fails  to  act  in  good  faith,  La  Rosine  (1800),  2 
C.  Robinson,  372;  The  Venus  (1803),  4  Ib.  355.  A  hospital  ship  which 
is  equipped  with  wireless  apparatus  and  which  sends  in  a  secret  code 
messages  of  which  it  fails  to  keep  a  complete  record  is  not  entitled  to 
the  protection  of  Hague  Convention  no.  10,  The  Ophelia  (1916),  L.  R. 
[1916]  2  A.  C.  206.  A  school  ship  for  the  training  of  navigators  is  not 
a  scientific  ship  exempt  from  capture,  The  Compte  de  Smet  de 
Naeyer  (Germany,  1916),  Entscheidungen,  209.  See  also  Hall,  Inter- 
national Law,  7th  ed.  473;  Westlake,  International  Law,  II,  133; 
Holtzendorff,  Handbuch  des  Volkerrechts,  IV,  585,  Holland,  Prize  Law, 
sec.  36;  Oppenheim,  International  Law,  II,  234;  Halleck,  International 
Law,  4th  ed.,  II,  124;  Latifl,  Effects  of  War  on  Property,  ch.  iv; 
Cobbett,  Cases  and  Opinions,  II,  169;  Hyde,  II,  510;  Moore,  Digest, 
VII,  434. 


CHAPTER  XV. 

PRIZE  LAW  AND  PRIZE  COURTS. 
THE  FLAD  OYEN. 

HIGH  COUBT  OF  ADMIRALTY  OF  ENGLAND.    1799. 
1  C.  Robinson,  135. 

[The  Flad  Oyen,  an  English  ship,  was  captured  by  a  French 
privateer  and  taken  to  the  neutral  port  of  Bergen,  Norway, 
where  the  French  consul  held  a  pretended  prize  court  and 
ordered  the  vessel  sold.  On  a  voyage  from  Bergen  to  St.  Martins 
she  was  captured  by  the  British,  and  is  now  claimed  by  her 
purchaser  at  the  sale  ordered  by  the  French  consul.  In  the 
first  part  of  his  opinion  the  learned  judge  discusses  the  bona 
fides  of  the  sale  and  finds  it  colorable.] 

Sir  W.  SCOTT  [LORD  STOWELL].  .  .  .  But  another  ques- 
tion has  arisen  in  this  case,  upon  which  a  great  deal  of  argument 
has  been  employed;  namely,  Whether  the  sentence  of  condemna- 
tion which  was  pronounced  by  the  French  consul,  is  of  such  legal 
authority  as  to  transfer  the  vessel,  supposing  the  purchase  to 
have  been  bona  fide  made?  I  directed  the  counsel  for  the  claim- 
ants to  begin ;  because,  the  sentence  being  of  a  species  altogether 
new,  it  lay  upon  them  to  prove  that  it  was  nevertheless  a  legal 
one. 

It  has  frequently  been  said,  that  it  is  the  peculiar  doctrine  of 
the  law  of  England  to  require  a  sentence  of  condemnation,  as 
necessary  to  transfer  the  property  of  prize;  and  that  accord- 
ing to  the  practice  of  some  nations  twenty-four  hours,  and  ac- 
cording to  the  practice  of  others  bringing  infra  presidia,  is 
authority  enough  to  convert  the  prize.  I  take  that  to  be  not 
quite  correct;  for  I  apprehend,  that  by  the  general  practice  of 
the  law  of  nations,  a  sentence  of  condemnation  is  at  present 
deemed  generally  necessary;  and  that  a  neutral  purchaser  in 
Europe,  during  war,  does  look  to  the  legal  sentence  of  condemna- 

606 


THE  FLAD  OYEN.  607 

tion  as  one  of  the  title-deeds  of  the  ship,  if  he  buys  a  prize 
vessel.  I  believe  there  is  no  instance  in  which  a  man  having 
purchased  a  prize  vessel  of  a  belligerent,  has  thought  himself 
quite  secure  in  making  that  purchase,  merely  because  the  ship 
had  been  in  the  enemy 's  possession  twenty-four  hours,  or  carried 
infra  presidio, :  the  contrary  has  been  more  generally  held,  and 
the  instrument  of  condemnation  is  amongst  those  documents 
which  are  most  universally  produced  by  a  neutral  purchaser; 
that  if  she  has  been  taken  as  prize,  it  should  appear  also  that 
she  has  been,  in  a  proper  judicial  form,  subjected  to  adjudica- 
tion. 

Now,  in  what  form  have  these  adjudications  constantly  ap- 
peared? They  are  the  sentences  of  courts  acting  and  exercising 
their  functions  in  the  belligerent  country ;  and  it  is  for  the  very 
first  time  in  the  world,  that,  in  the  year  1799,  an  attempt  is  made 
to  impose  upon  the  court  a  sentence  of  a  tribunal  not  existing  in 
the  belligerent  country,  but  of  a  person  pretending  to  be  author- 
ized within  the  dominions  of  a  neutral  country :  in  my  opinion, 
if  it  could  be  shewn,  that,  regarding  mere  speculative  general 
principles,  such  a  condemnation  ought  to  be  deemed  sufficient; 
that  would  not  be  enough;  more  must  be  proved;  it  must  be 
shewn  that  it  is  conformable  to  the  usage  and  practice  of  na- 
tions. 

A  great  part  of  the  law  of  nations  stands  on  no  other  founda- 
tion :  it  is  introduced,  indeed,  by  general  principles ;  but  it 
travels  with  those  general  principles  only  to  a  certain  extent: 
and,  if  it  stops  there,  you  are  not  at  liberty  to  go  farther,  and  to 
say,  that  mere  general  speculations  would  bear  you  out  in  a 
further  progress :  thus,  for  instance,  on  mere  general  principles 
it  is  lawful  to  destroy  your  enemy ;  and  mere  general  principles 
make  no  great  difference  as  to  the  manner  by  which  this  is  to  be 
effected;  but  the  conventional  law  of  mankind,  which  is  evi- 
denced in  their  practice,  does  make  a  distinction,  and  allows 
some,  and  prohibits  other  modes  of  destruction;  and  a  bellig- 
erent is  bound  to  confine  himself  to  those  modes  which  the  com- 
mon practice  of  mankind  has  employed,  and  to  relinquish  those 
which  the  same  practice  has  not  brought  within  the  ordinary  ex- 
ercise of  war,  however  sanctioned  by  its  principles  and  purposes. 

Now,  it  having  been  the  constant  usage,  that  the  tribunals  of 
the  law  of  nations  in  these  matters  shall  exercise  their  functions 
within  the  belligerent  country;  if  it  was  proved  to  me  in  the 
clearest  manner,  that  on  mere  general  theory  such  a  tribunal 


608  PRIZE  LAW  AND  PRIZE  COURTS. 

might  act  in  the  neutral  country ;  I  must  take  my  stand  on  the 
ancient  and  universal  practice  of  mankind ;  and  say  that  as  far 
as  that  practice  has  gone,  I  am  willing  to  go ;  and  where  it  has 
thought  proper  to  stop,  there  I  must  stop  likewise. 

It  is  my  duty  not  to  admit,  that  because  one  nation  has 
thought  proper  to  depart  from  the  common  usage  of  the  world, 
and  to  treat  the  notice  of  mankind  in  a  new  and  unprecedented 
manner,  that  I  am  on  that  account  under  the  necessity  of 
acknowledging  the  efficacy  of  such  a  novel  institution;  merely 
because  general  theory  might  give  it  a  degree  of  countenance,  in- 
dependent of  all  practice  from  the  earliest  history  of  mankind. 
The  institution  must  conform  to  the  text  law,  and  likewise  to  the 
constant  usage  upon  the  matter ;  and  when  I  am  told,  that  before 
the  present  war,  no  sentence  of  this  kind  has  ever  been  produced 
in  the  annals  of  mankind ;  and  that  it  is  produced  by  one  nation 
only  in  this  war;  I  require  nothing  more  to  satisfy  me,  that  it 
is  the  duty  of  this  Court  to  reject  such  a  sentence  as  inad- 
missible. 

Having  thus  declared  that  there  must  be  an  antecedent  usage 
upon  the  subject,  I  should  think  myself  justified  in  dismissing 
this  matter  without  entering  into  any  farther  discussion. — But 
even  if  we  look  farther,  I  see  no  sufficient  ground  to  say,  that 
on  mere  general  principles  such  a  sentence  could  be  sustained: 
proceedings  upon  prize  are  proceedings  in  rem;  and  it  is  pre- 
sumed, that  the  body  and  substance  of  the  thing,  is  in  the  coun- 
try which  has  to  exercise  the  jurisdiction.  I  have  not  heard  any 
instances  quoted  to  the  contrary,  excepting  in  a  very  few  cases 
which  have  been  urged,  argumentatively,  in  the  way  which  is 
technically  called  ad  hominem,  being  cases  of  condemnations  of 
British  prizes  carried  into  the  ports  of  Lisbon  and  Leghorn:  but 
in  those  the  condemnations  were  pronounced  by  the  High  Court 
of  Admiralty  in  England.  The  only  cases  are  of  two  ships  car- 
ried into  foreign  ports,  and  condemned  in  England  by  this 
Court;  the  very  infrequency  of  such  a  practice  shews  the  ir- 
regularity of  it.  Upon  cases  in  the  practice  of  other  nations 
antecedent  to  the  present  war,  the  advocates  have  been  silent. 

Now,  as  to  these  condemnations  of  prizes  carried  to  Lisbon  and 
Leghorn,  it  has  been  said,  that  if  the  courts  of  Great  Britain 
venture  this  degree  of  irregularity,  other  countries  have  a  right 
to  go  farther.  That  consequence  I  deny:  the  true  mode  of  cor- 
recting the  irregular  practice  of  a  nation  is,  by  protesting  against 
it ;  and  by  inducing  that  country  to  reform  it :  it  is  monstrous  to 


THE  FLAD  OYEN.  609 

suppose,  that  because  one  country  has  been  guilty  of  an  irregu- 
larity, every  other  country  is  let  loose  from  the  law  of  nations; 
and  is  at  liberty  to  assume  as  much  as  it  thinks  fit. 

Upon  these  ports  of  Lisborn  and  Leghorn  it  is  to  be  remarked, 
that  they  have  a  peculiar  and  discriminate  character,  a  character 
that  to  a  certain  degree  assimilates  them  to  British  ports:  the 
British  exist  there  in  a  distinct  character,  under  the  protection 
of  peculiar  treaties ;  and  with  respect  to  Portugal,  those  treaties 
go  so  far  as  to  engage,  that  if  a  ship  belonging  to  one  country 
shall  be  brought  by  its  enemy  into  the  ports  of  another,  which 
happens  to  be  at  peace,  this  neutral  country  shall  be  bound  to 
seize  that  ship,  and  restore  it  to  its  ally :  to  be  sure  no  covenant 
can  have  more  the  effect  of  giving  the  ports  of  England  and 
Portugal  a  reciprocal  relation  of  a  very  peculiar  sort — to  make 
the  British  ports  Portugese  ports,  and  the  Portugese  ports  Brit- 
ish ports  to  a  certain  degree.  Now,  unless  I  am  given  to  under- 
stand, that  peculiar  treaties  between  France  and  Denmark  have 
impressed  such  a  distinctive  character  upon  the  port  of  Bergen, 
I  cannot  allow  that  it  can  be  considered,  on  the  mere  footing  of 
general  neutrality,  to  be  a  French  port,  exactly  in  the  same 
manner  in  which  London  may  be  considered  as  a  Portugese  port, 
or  Lisbon  as  a  British  port. 

But  supposing  this  possible,  still  it  would  not  follow  that  such 
condemnations  could  be  pleaded  as  authorities  in  the  present 
case ;  because,  in  the  first  place,  the  validity  of  such  condemna- 
tions themselves  may  be  the  subject  of  reasonable  doubt. — For 
it  by  no  means  appears  that  the  enemy,  or  neutrals,  who  might 
have  an  interest  in  contesting  them,  have  ever  acknowledged 
their  validity.  Whoever  purchases  under  such  sentences  must 
be  content  to  purchase  them  subject  to  all  the  questions  that  may 
arise  upon  their  sufficiency. 

But,  2dly,  Supposing  that  no  doubts  could  be  entertained  re- 
specting the  sufficiency  of  such  sentences;  it  by  no  means  fol- 
lows that  the  efficacy  of  the  present  sentence  can  be  supported: 
there  the  tribunal  is  acting  in  the  country  to  which  it  belongs, 
and  with  whose  authority  it  is  armed.  Here  a  person,  utterly 
naked  of  all  authority  except  over  the  subjects  of  his  own  coun- 
try, and  possessing  that  merely  by  the  indulgence  of  the  country 
in  which  he  resides,  pretends  to  exercise  a  jurisdiction  in  a  mat- 
ter in  which  the  subjects  of  many  other  States  may  be  concerned. 
No  such  authority  was  ever  conceded  by  any  country  to  a  for- 
eign agent  of  any  description  residing  within  it :  and  least  of  all 


610  PRIZE  LAW  AND  PRIZE  COURTS. 

could  such,  an  authority  be  conceded  in  the  matter  of  prize  of 
war — a  matter  over  which  a  neutral  country  has  no  cognizance 
whatever,  except  in  the  single  case  of  an  infringement  of  its  own 
territory ;  and  in  which  such  a  concession  of  authority  cannot  be 
made  without  departing  from  the  duties,  and  losing  the  benefits, 
of  its  neutral  character. 

Mark  the  consequences  which  must  follow  from  such  a  pre- 
tended concession:  observe  in  the  present  case  how  it  would 
affect  the  neutral  character  of  the  ports  in  the  north !  If  France 
can  station  a  judge  of  the  Admiralty  at  Bergen,  and  can  station 
there  its  cruisers  to  carry  in  prizes  for  that  judge  to  condemn ; ' 
who  can  deny  that  to  every  purpose  of  hostile  mischief  against 
the  commerce  of  England,  Bergen  will  differ  from  Dunkirk,  in 
no  other  respect  than  this,  that  it  is  a  port  of  the  enemy  to  a 
much  greater  extent  of  practical  mischief.  To  make  the  ports 
of  Norway  the  seats  of  the  French  tribunals  of  war,  is  to  make 
the  adjacent  sea  the  theatre  of  French  hostility. 

It  gives  one  belligerent  the  unfair  advantage  of  a  new  station 
of  war,  which  does  not  properly  belong  to  him;  and  it  gives  to 
the  other  the  unfair  disadvantage  of  an  active  enemy  in  a 
quarter  where  no  enemy  would  naturally  be  found.  The  coasts 
of  Norway  could  no  longer  be  approached  by  the  British  mer- 
chant with  safety,  and  a  suspension  of  commerce  would  soon  be 
followed  by  a  suspension  of  amity. 

Wisely,  therefore,  did  the  American  government  defeat  a  simi- 
lar attempt  made  on  them  [by  the  French  minister  Genet] ,  at  an 
earlier  period  of  the  war:  they  knew  that  to  permit  such  an 
exercise  of  the  rights  of  war,  within  their  cities,  would  be  to 
make  their  coasts  a  station  of  hostility. 

Whether  the  government  of  Denmark  has  shewn  equal  vigil- 
ance in  observing,  or  equal  indignation  in  repelling  the  attempt, 
is  more  than  I  am  warranted  to  assert :  but  though  the  publicity 
of  the  transaction  in  the  town  of  Bergen  may  subject  the  police 
of  that  place  to  some  degree  of  observation,  I  see  nothing  in  the 
papers  which  issue  immediately  from  the  royal  authority  that 
at  all  affects  the  government  itself  with  the  knowledge  and  ap- 
probation of  the  fact;  and  indeed  it  would  be  indecent  to  sup- 
pose that  a  country,  standing  upon  the  footing  of  ancient  and 
friendly  alliance  to  this  country,  could  have  given  its  sanction 
to  a  measure  so  full  of  hostility  to  its  friend,  and  of  possible 
inconvenience  to  itself:  I  must,  therefore,  deem  the  act  of  this 
French  consul  a  licentious  attempt  to  exercise  the  rights  of  war 


GUSHING,  ADM'R.  v.  UNITED  STATES.  611 

within  the  bosom  of  a  neutral  country,  where  no  such  exercise 
has  ever  been  authorized. 

I  am  of  opinion  upon  the  whole,  that  this  ship  must  be  re- 
stored to  the  British  owners  upon  the  usual  salvage.     .    .    . 


GUSHING,  ADMINISTRATOR,  v.  THE  UNITED  STATES. 

COURT  OF  CLAIMS  OF  THE  UNITED  STATES.     1886. 
22  Ct.  Cl.  1. 

[This  was  a  rehearing  of  the  questions  involved  in  Gray,  Ad- 
ministrator v.  The  United  States  (1886),  21  Court  of  Claims, 
340,  for  which  see  ante  364.  In  the  course  of  the  argument, 
counsel  for  the  defendant  requested  the  court  to  find  inter  alia 
the  following  conclusions  of  law: 

"11.  That  claimants  had  no  valid  claim  against  France,  for 
the  reason,  among  others,  that  they  did  not  exhaust  their  reme- 
dies in  the  French  courts  by  appeal  or  action  upon  the  bond  and 
against  the  property  of  the  captor.  .  .  . 

13.  It  is  universally  admitted  that  the  decree  of  a  prize 
court  is  conclusive  against  all  the  world  as  to  all  matters  decided 
and  within  its  jurisdiction.  .  .  .  ' 

Only  so  much  of  the  opinion  is  here  given  as  relates  to  these 
requests.] 

DAVIS,  J.,  delivered  the  opinion  of  the  court:     .     .     . 

The  jurisdictional  act  requires  us  to  inquire  into  legal  con- 
demnations, and  it  is  urged  on  behalf  of  the  defendants  that 
all  condemnations  by  the  French  courts  are  final  and  conclusive 
upon  this  court  if  the  French  court  had  jurisdiction.  Many  cita- 
tions are  made  in  support  of  this  contention,  among  them  is  the 
case  of  Baring  and  others  v.  The  Royal  Exchange  Assurance 
Company  (5  East.,  99  et  seq.},  which  may  be  taken  as  a  fair 
illustration. 

The  American  ship  Rosanna,  insured  by  the  defendants,  was 
captured  and  condemned  by  the  French,  whereupon  the  plain- 
tiffs sued  on  the  policy  and  recovered.  Lord  Ellenborough, 
Ch.  J.,  interrupting  the  argument,  said: 

"Does  not  this  [French]  sentence  of  condemnation  proceed 
sufficiently  on  the  ground  of  infraction  of  treaty  between  Ameri- 


612  PRIZE  LAW  AND  PRIZE  COURTS. 

ca  and  France  in  the  ship  not  having  those  documents  with  which 
in  the  judgment  of  the  French  court  the  American  was  bound  by 
treaty  to  be  provided?  I  do  not  say  that  they  have  construed 
the  treaty  rightly ;  on  the  contrary,  suppose  them  to  have  con- 
strued it  ever  so  iniquitously ;  yet,  having  competent  jurisdiction 
to  construe  the  treaty,  and  having  professed  to  do  so,  we  [the 
court]  are  bound  by  that  comity  of  nations  which  has  always 
prevailed  amongst  civilized  states  to  give  credit  to  their  adjudi- 
cation when  the  same  question  arises  here  upon  which  the  for- 
eign court  has  decided.  After  arguing  for  hours,  we  must  come 
to  the  same  conclusion  at  last,  that  the  French  court  has  spe- 
cifically condemned  the  vessel  for  an  infraction  of  treaty  which 
negatives  the  warranty  of  neutrality.  Then,  having  distinctly 
adjudged  the  vessel  to  be  good  prize  upon  a  ground  within  their 
jurisdiction,  unless  we  deny  their  jurisdiction,  we  are  bound  to 
abide  by  that  judgment.  Whenever  a  case  occurs  of  a  condem- 
nation by  a  foreign  court  on  the  ground  of  ex  parte  ordinances 
only,  without  drawing  inferences  from  them  to  show  an  infrac- 
tion of  treaty  between  the  nation  of  the  captors  and  captured, 
and  referring  the  judgment  of  the  court  to  the  breach  of  treaty, 
I  shall  be  glad  to  hear  the  case  argued,  whether  such  ordinances 
are  to  be  considered  as  furnishing  rules  of  presumption  only 
against  the  neutrality  or  as  positive  laws  in  themselves,  binding 
other  nations  proprio  vigore." 

The  decision  of  the  English  court,  then,  goes  to  this  extent, 
that  in  an  action  between  individuals,  the  decree  of  the  French 
court  which  had  jurisdiction  is  final ;  so  would  it  also  be  final  as 
to  the  vessel,  and  the  purchaser  at  the  confiscation  sale  could  rest 
upon  the  decree  as  good  title  against  all  the  world. 

But  all  this  does  not  affect  the  position  of  the  United  States 
Government  against  the  government  of  France. 

Lord  Ellenborough  says  that  no  matter  how  iniquitous  the 
construction  given  the  treaty  by  the  French  court,  he,  as  a 
judge,  is  bound  to  follow  it.  But  so  is  not  the  Government  of 
the  United  States.  That  Government  could  have  objected  that 
either  the  court  was  corrupt,  or  that  there  existed  no  treaty,  or 
that  there  had  been  manifest  error  in  construing  it.  All  such 
questions  may  be  outside  the  right  of  a  court  to  consider,  but 
they  are  within  the  right  and  form  part  of  the  duty  of  the 
political  branch  of  the  Government.  If  the  French  court,  acting 
within  its  jurisdiction,  construed  the  treaty  iniquitously,  the 
courts  might  not  have  power  to  remedy  the  wrong,  but  the 


GUSHING,  ADM'R,  v.  UNITED  STATES.  613 

owner  had  a  right  to  appeal  to  his  Government  for  redress,  and 
that  Government,  when  convinced  of  the  justice  of  his  complaint, 
was  bound  to  endeavor  to  redress  it. 

The  decree  is  an  estoppel  on  the  courts,  but  it  is  no  estoppel 
on  the  Government ;  in  fact,  the  right  to  diplomatic  interference 
arises  only  after  the  decree  is  rendered.  Of  course,  precedents 
for  cases  of  this  kind  are  not  to  be  found  in  the  reports  of  courts, 
for  no  such  case  can,  in  the  nature  of  things,  come  before  a  court 
unless  by  virtue  of  a  special  and  peculiar  statute,  such  as  that 
under  which  we  now  act ;  but  diplomatic  history  is  full  of  them. 
Rutherforth  (Institutes,  vol.  2,  ch.  9,  p.  19),  speaking  of  the 
right  of  a  state  to  proceed  in  prize,  says : 

"This  right  of  the  state  to  which  the  captors  belong  to  judge 
exclusively  is  not  a  complete  jurisdiction.  The  captors,  who 
are  its  own  members,  are  bound  to  submit  to  its  sentence,  though 
this  sentence  should  happen  to  be  erroneous,  because  it  has  a 
complete  jurisdiction  over  their  persons.  But  the  other  parties 
in  the  controversy,  as  they  are  members  of  another  state,  are 
only  bound  to  submit  to  its  sentence  as  far  as  this  sentence  is 
agreeable  to  the  law  of  nations,  or  to  particular  treaties,  because 
it  has  no  jurisdiction  over  them  in  respect  either  of  their  persons 
or  of  the  things  that  are  the  subject  of  the  controversy.  If  jus- 
tice, therefore,  is  not  done  them,  they  may  apply  to  their  own 
state  for  a  remedy ;  which  may,  consistently  with  the  law  of  na- 
tions give  them  a  remedy  either  by  solemn  war  or  by  reprisals. 
(See  Dana's  Wheaton,  391.)" 

This  brings  us  naturally  to  another  point,  admitted  as  a  gen- 
eral principle,  that  appeal  should  be  prosecuted  to  the  court  of 
last  resort  before  there  can  be  diplomatic  intervention. 

The  exceedingly  able  British- American  Commission  which  sat 
in  Washington  in  1872  not  only  unanimously  decided  that  they 
had  jurisdiction  in  prize  cases  in  which  the  decision  of  the  ulti- 
mate appellate  tribunal  of  the  United  States  had  been  had,  a 
conclusion  in  which  even  the  agent  of  the  United  States  con- 
curred, but  also  that  they  had  jurisdiction  when  the  claimant 
had  not  pursued  his  remedy  to  the  court  of  last  resort,  provided 
satisfactory  reasons  were  given  for  the  failure  to  appeal. 
(Papers  relating  to  the  Treaty  of  Washington,  vol.  6,  pp.  88-90.) 
To  this  last  conclusion  the  American  Commissioner  dissented; 
but  even  he  held  that  a  misfeasance  or  default  of  the  capturing 
Government,  by  which  means  an  appeal  was  prevented,  was 
sufficient  to  excuse  the  failure  to  appeal.  (Id.,  92.) 


614  PRIZE  LAW  AND  PRIZE  COURTS. 

The  rights  of  the  prize  courts  are  the  rights  of  the  capturing 
state.  These  courts  are  its  agents,  deputed  by  it  to  'examine  into 
the  conduct  of  its  own  subjects  before  becoming  answerable  for 
what  they  have  done,  and  the  right  ends  when  their  conduct  has 
been  thoroughly  examined.  Therefore  the  state  has  a  right  to 
require  that  the  captor's  acts  be  examined  in  all  the  ways  which 
it  has  appointed  for  this  purpose,  and  on  this  principle  is  found- 
ed the  doctrine  that  the  complainant,  unless  he  exhaust  his 
appeal,  shall  be  held  to  confess  the  justice  of  the  decision.  This 
pre-supposes,  first,  that  tWere  are  appellate  courts;  second,  that 
they  are  open  to  the  complainant  freely  and  honestly.  The  cap- 
tor has  no  right  to  insist  for  his  own  protection  upon  the  fulfil- 
ment of  a  form  which  he  by  his  own  acts  prevents. 

There  is  also  a  distinction,  not  often  clearly  drawn,  between 
the  validity  of  a  claim  per  se  and  the  right  to  enforcement.  The 
justice  of  the  claim  is  founded  upon  the  injustice  of  the  sentence. 
The  appeal  does  not  affect  the  merits  of  the  claim;  it  does  not 
palliate  or  destroy  any  wrong  done;  but  it  is  simply  a  course 
provided  for  the  captor's  protection,  that  he  may  fully  examine 
into  the  acts  of  his  own  agents,  through  his  other  agents,  the 
courts. 

' '  The  whole  proceeding,  from  the  capture  to  the  condemnation, 
is  a  compulsory  proceeding  in  invitum  by  the  state  in  its  politi- 
cal capacity,  in  the  exercise  of  war  powers,  for  which  it  is 
responsible,  as  a  body  politic,  to  the  state  of  which  the  owner  of 
the  property  is  a  citizen."  (Dana's  Wheaton,  note  186.) 

Therefore  the  capturing  state  may  waive  such  demand,  and 
not  insist  upon  exhausting  its  right  to  further  investigation,  and 
may  waive  it  by  failing  to  provide  an  appellate  tribunal,  or  by 
preventing  recourse  to  it,  or  in  any  other  way  which  shows  an 
intention  not  to  insist  upon  this  right  of  examination;  but  ap- 
peal or  no  appeal,  the  validity  of  the  claim  is  founded  upon  the 
injustice  to  the  claimants. 

All  writers  lay  down  the  principle  that  appeal  should  be  taken 
from  the  inferior  to  the  superior  tribunal  before  resort  by  the 
injured  Government  to  measures  of  redress;  but  this  principle 
is  always  coupled  with  the  extreme  measures  of  war  and  re- 
prisals (see  Rutherforth,  supra;  Grotius,  bk.  3,  ch.  2,  §§  4,  5), 
and  there  is  no  assertion  in  the  writers  that  illegal  capture  nec- 
essarily does  not  found  an  international  claim  even  when  appeal 
has  not  been  taken. 

It  was  notorious  that  justice  could  not  be  obtained  in  the 


GUSHING,  ADM'R.  v.  UNITED  STATES.          615 

French  prize  tribunals  in  existence  at  the  time  of  those  seizures. 
.  .  .  Consuls  were  at  one  time  forbidden  to  appear  before 
the  tribunals  in  defense  of  absent  owners.  .  .  .  The  form 
and  expense  of  appeal  were  useless,  for  it  was  not  denied  that 
the  adjudications  below  were  in  accordance  with  French  or- 
dinances, while  it  was  contended  that  they  were  in  violation  of 
the  rights  of  neutrals,  measured  either  by  treaty  provision  or 
by  the  precepts  of  the  law  of  nations.  Municipal  law  is  not  a 
measure  of  international  responsibility,  but  it  is  binding  within 
the  jurisdiction  of  the  state  upon  all  its  subordinate  agents,  in- 
cluding the  courts.  The  decree  in  one  of  the  cases  before  us, 
which  was  appealed  to  the  civil  tribunal,  shows  .  .  .  that 
questions  of  treaty  or  international  law  were  not  ruled  upon,  the 
court  being  guided  alone  by  the  statutes  of  France.  In  the  face 
of  precedents  of  this  kind  an  appeal  was  a  vain  and  expensive 
form,  as  an  affirmation  of  the  judgment  below  necessarily  must 
follow. 

It  is  important  to  note  that  during  the  period  of  these  seizures 
neither  the  Government  of  the  United  States,  which  consistently 
supported  the  claimants'  contentions,  nor  the  Government  of 
France,  from  whom  we  were  demanding  redress,  indicated  the 
necessity  of  the  form  of  appeal,  nor  later  did  the  French,  even 
in  the  long  negotiations  in  which  the  validity  of  these  claims 
was  a  principal  subject  of  discussion,  intimate  in  any  way  that 
they  considered  the  appeal  of  importance  or  that  they  required 
it. 

We  conclude,  therefore,  that  under  these  exceptional  circum- 
stances a  claim  properly  founded  in  law  is  not  excluded  from 
our  jurisdiction  because  the  supposed  remedy  by  appeal  was  not 
exhausted,  and  this  wre  hold  upon  two  principal  grounds :  First 
that  by  the  action  of  the  French  Government  such  an  appeal 
was  useless  or  impracticable ;  second,  that  as  between  the  United 
States  and  France  such  an  appeal  as  a  condition  precedent  to 
recovery  was  in  effect  waived.  .  .  . 


616  PRIZE  LAW  AND  PRIZE  COURTS. 

THE  ROUMANIAN. 

JUDICIAL  COMMITTEE  OF  THE  PRIVY  COUNCIL  OF  GREAT  BEITAIN.     1915. 
Law  Reports  [1916]  1  A.  C.  124. 

[The  statement  of  facts  and  the  first  part  of  the  opinion  are 
printed  ante,  556.] 

LORD  PARKER  OF  WADDINGTON.  .  .  .  The  next  point  to  be 
considered  is  the  jurisdiction  of  the  Prize  Court  so  far  as  the 
petroleum  in  question  was,  when  seized  as  prize,  warehoused  in 
the  tanks  of  the  British  Petroleum  Company,  Limited,  and  no 
longer  on  board  the  Roumanian.  The  appellants  contended  that 
it  is  the  local  situation  of  the  goods  seized  as  prize  which  deter- 
mines the  jurisdiction  of  the  Prize  Court.  If  such  goods  be,  at 
the  time  of  seizure,  on  land  and  not  afloat,  it  is  not,  they  con- 
tended, the  Prize  Court  but  some  Court  of  common  law  which 
has  jurisdiction  to  determine  the  rights  of  all  parties  interested. 
In  their  Lordships'  opinion,  this  contention  also  fails.  The  chief 
function  of  a  Court  of  Prize  is  to  determine  the  question,  ' '  prize 
or  no  prize,"  in  other  words,  whether  the  goods  seized  as  prize 
were  lawfully  so  seized,  so  as  to  raise  a  title  in  the  Crown.  In 
determining  this  question  the  local  situation  of  the  goods  at  the 
time  of  seizure  may  be  of  importance,  but  it  is  the  seizure  as 
prize  and  not  the  local  situation  of  the  goods  seized  which  con- 
fers jurisdiction.  If  authority  be  needed  for  this  proposition,  it 
may  be  found  in  Lord  Mansfield 's  judgment  in  the  case  of  Lindo 
v.  Rodney,  reported  in  a  note  to  Le  Caux  v.  Eden,  2  Doug.  594, 
at  p.  612,  n.  It  must  be  remembered  that  the  jurisdiction  of  the 
Prize  Court  is  based  in  every  case  upon  a  commission  under  the 
Great  Seal.  Lord  Mansfield  pointed  out  that  in  the  case  before 
him  the  commission  under  which  the  Court  derived  jurisdiction 
conferred  jurisdiction  in  all  cases  of  prize  whether  the  goods 
sought  to  be  condemned  were  taken  on  land  or  afloat.  The  same 
may  be  said  of  the  commission  in  the  present  case.  In  his  opin- 
ion, however,  it  was  necessary  to  draw  a  distinction  in  this  con- 
nection between  the  jurisdiction  of  the  Court  of  Admiralty  as  a 
Court  of  Prize  and  its  jurisdiction  apart  from  the  commission 
which  constitutes  it  a  Court  of  Prize.  To  give  the  Court  of  Ad- 
miralty, as  such,  jurisdiction  the  matter  complained  of  must  have 
occurred  on  the  high  seas,  but  in  all  matters  of  prize  it  was  not 
the  Court  of  Admiralty  as  such,  but  the  Court  of  Admiralty  by 


THE  ROUMANIAN.  617 

virtue  of  the  commission  which  had  jurisdiction,  and  this  juris- 
diction was  exclusive,  whether  the  goods  seized  as  prize  were  on 
land  or  afloat.  The  only  authority  which,  at  first  sight,  appears 
to  be  in  conflict  with  Lord  Mansfield's  decision  is  the  case  of 
The  Ooster  Eems,  1  C.  Rob.  284,  n.,  to  which,  for  the  reasons 
hereinafter  mentioned,  no  great  weight  can  be  given. 

Their  Lordships  will  now  proceed  to  consider  the  appellants' 
contention  that  even  if  the  Prize  Court  had  jurisdiction  it  ought 
nevertheless  to  have  decided  against  the  condemnation  of  the 
petroleum  in  question  so  far  as  it  was  not  actually  afloat  on 
board  the  Roumanian  at  the  time  of  seizure.  They  admitted 
that  during  the  war  no  order  for  restitution  or  release  could 
properly  be  made  in  favor  of  the  German  owners,  but  they  sug- 
gested that  the  proper  course  was  to  haul  the  petroleum  over  to 
the  Public  Trustee  or  some  other  official  for  safe  custody  until 
the  restoration  of  peace.  No  case  where  any  such  course  has 
been  pursued  was  cited. 

The  real  question  is  whether  the  petroleum  in  question  is,  ac- 
cording to  the  law  administered  by  Prize  Courts  in  this  country, 
properly  the  subject  of  maritime  prize,  although  locally  situated 
on  shore.  All  enemy  ships  and  cargoes  which  may,  after  the 
outbreak  of  the  war,  be  found  afloat  on  the  high  seas  or  in  ter- 
ritorial waters  or  in  the  ports  or  harbours  of  the  realm  are  liable 
to  seizure  as  maritime  prize.  The  petroleum  in  question  was 
undoubtedly  enemy  property.  It  was  undoubtedly  on  the  high 
seas  at  and  after  the  declaration  of  war.  It  became  liable  to 
seizure  as  prize  as  soon  as  war  was  declared.  It  did  not  cease  tc 
be  so  liable  by  being  carried  into  Dartmouth  or  thence  to  Par- 
fleet.  It  clearly  remained  so  liable  while  still  afloat.  Did  it  cease 
to  be  so  liable  when  pumped  into  the  tanks  of  the  British  Petro- 
leum Company,  Limited  ?  In  the  course  of  the  argument  counsel 
were  asked  to  suggest  some  intelligible  reason  why  it  should 
cease  to  be  so  liable.  No  satisfactory  reason  was  suggested,  and 
their  Lordships  have  been  unable  to  discover  one  for  themselves. 
The  argument  of  counsel  was  based  on  the  assumption  that  no 
enemy  goods  not  actually  afloat  at  the  time  of  seizure  could  be 
lawfully  seized  as  prize,  unless  possibly  they  could  be  considered 
as  locally  situate  within  a  port  or  harbour,  and  that  the  tanks  of 
the  British  Petroleum  Company,  Limited,  could  not  be  consid- 
ered as  part  of  the  Port  of  London.  There  is,  in  their  Lordships' 
opinion,  no  ground  for  this  assumption.  The  test  of  afloat  or 
ashore  is  no  infallible  test  as  to  whether  goods  can  or  cannot  be 


618  PRIZE  LAW  AND  PRIZE  COURTS. 

lawfully  seized  as  maritime  prize.  It  is  perfectly  clear,  for  in- 
stance, that  enemy  goods  seized  on  enemy  territory  by  the  naval 
forces  of  the  Crown  may  lawfully  be  condemned  as  prize.  The 
same  is  true  of  goods  seized  by  persons  holding  letters  of  marque, 
and  even  of  goods  seized  by  persons  having  no  authority  what- 
ever on  behalf  of  the  Crown,  when  the  Crown  subsequently  rati- 
fies the  seizure.  This  is  clear  from  the  case  of  Brown  and  Burton 
v.  Franklyn  (1705),  Garth.  474,  quoted  in  Lord  Mansfield's 
judgment  above  referred  to.  Brown  and  Burton,  the  masters 
of  a  vessel  belonging  to  the  East  India  Company,  seized  enemy 
goods  on  land.  They  had  no  letters  of  marque.  The  King's 
Proctor  instituted  proceedings  in  the  Prize  Court,  and  having 
obtained  a  condemnation  of  the  property  as  prize  proceeded 
against  Brown  and  Burton  for  an  account.  The  latter  insti- 
tuted proceedings  at  common  law  for  a  prohibition  on  the 
ground  that  the  goods  taken  were  on  land,  but  relief  was  re- 
fused. Moreover,  Lord  Mansfield,  in  Lindo  v.  Rodney,  2  Doug. 
612,  expressly  approves  an  admission  made  by  counsel  in  that 
case  to  the  effect  that  it  would  be  " spinning  very  nicely"  to 
contend  that,  if  the  enemy  left  their  ship  and  got  on  shore  with 
money  and  were  followed  on  land  and  stripped  of  their  money, 
this  would  not  be  a  lawful  maritime  prize.  If  this  be,  as  it  seems 
to  their  Lordships  to  be,  good  law,  the  present  is  an  a  fortiori 
case.  In  the  case  put  by  counsel  the  landing  of  the  goods  was 
made  by  the  enemy  with  the  object  of  escaping  capture  afloat. 
In  the  present  case  the  landing  was  by  British  subjects  who  had 
the  enemy  goods  in  their  possession  and  did  not  know  what  else 
to  do  with  them,  and  were^ pursuing  a  course  recommended  by 
the  Board  of  Trade  and  in  no  way  intended  to  prejudice  the 
Crown's  rights.  .  .  . 

Their  Lordships,  therefore,  have  come  to  the  conclusion  that 
the  petroleum  on  board  the  Roumanian,  having  from  the  time 
of  the  declaration  of  the  war  onwards  been  liable  to  seizure  as 
prize,  did  not  cease  to  be  so  liable  merely  because  the  owners  of 
the  vessel,  not  being  able  to  fulfil  their  contract  for  delivery  at 
Hamburg,  pumped  it  into  the  tanks  of  the  British  Petroleum 
Company,  Limited,  for  safe  custody,  and  that  therefore  its 
seizure  as  prize  was  lawful.  They  see  no  reason  to  dissent  from 
the  judgment  of  the  President  to  the  effect  that  these  tanks  con- 
stituted part  of  the  Port  of  London  for  the  purpose  of  applying 
the  rule  relating  to  the  liability  to  seizure  of  enemy's  goods  in 


THE  ZAMORA.  619 

the  ports  and  harbours  of  the  realm,  but  it  is  unnecessary  to  de- 
cide this  point. 

For  the  reasons  hereinbefore  appearing  their  Lordships  are  of 
opinion  that  the  appeal  should  be  dismissed,  and  they  will 
humbly  advise  His  Majesty  accordingly. 


THE  ZAMORA. 

JUDICIAL  COMMITTEE  OF  THE  PRIVY  COUNCIL  OF  GREAT  BRITAIN.     1916. 
Law  Reports  [1916]  2  A.  C.  77. 

On  appeal  from  the  High  Court  of  Justice,  Probate,  Divorce 
and  Admiralty  Division,  in  Prize. 

LORD  PARKER  OP  WADDINGTON.  On  April  8,  1915,  the  Zamora, 
d  Swedish  steamship  bound  from  New  York  to  Stockholm  with 
a  cargo  of  grain  and  copper,  was  stopped  by  one  of  His  Majes- 
ty's cruisers  between  the  Faroe  and  Shetland  Islands  and  taken 
for  purposes  of  search  first  to  the  Orkney  Islands  and  then  to 
Barrow-in-Furness.  She  was  seized  as  prize  in  the  latter  port 
on  April  19,  1915,  and  in  due  course  placed  in  the  custody  of 
the  marshal  of  the  Prize  Court.  ...  On  May  14,  1915,  a 
writ  was  issued  by  His  Majesty's  Procurator-General  claiming 
confiscation  of  both  vessel  and  cargo,  and  on  June  14,  1915,  the 
President  [of  the  Prize  Court],  at  the  instance  of  the  Procurator- 
General,  made  an  order  under  Order  XXIX.,  r.  1,  of  the  Prize 
Court  Rules  giving  leave  to  the  War  Department  to  requisition 
the  copper,  but  subject  to  an  undertaking  being  given  in  accord- 
ance with  the  provisions  of  order  XXIX.,  r.  5.1  This  appeal  is 
from  the  President's  order  of  June  14,  1915.  .  .  . 


i  The  provisions  of  the  Orders  in  Council  essential  to  the  decision 
of  this  case  are  as  follows: 

Order  I  ...  "2  ...  The  term  'ship'  when  used  in  these 
Rules  shall  also  mean  'goods'  and  'freight.' " 

Order  XXIX  [as  amended  by  Order  of  Council  of  April  29,  1915]: 

"1.  Where  it  is  made  to  appear  to  the  Judge  on  the  application  of 
the  proper  Officers  of  the  Crown  that  it  is  desired  to  requisition  on 
behalf  of  His  Majesty  a  Ship  in  respect  of  which  no  final  decree  of 
condemnation  has  been  made,  he  shall  order  that  the  Ship  shall  be 
appraised,  and  that  upon  an  undertaking  being  given  in  accordance 
with  Rule  5  of  this  Order  [providing  for  payment  for  ship  or  goods 
taken]  the  Ship  shall  be  released  and  delivered  to  the  Crown." — Ed. 


620  PRIZE  LAW  AND  PRIZE  COURTS. 

The  Prize  Court  Rules  derive  their  force  from  Orders  of  His 
Majesty  in  Council.  These  Orders  are  expressed  to  be  made 
under  the  powers  vested  in  His  Majesty  by  virtue  of  the  Prize 
Court  Act,  1894  [57  &  58  Viet.  c.  39],  or  otherwise.  The  Act  of 
1894  confers  on  the  King  in  Council  power  to  make  rules  as  to 
the  procedure  and  practice  of  the  Prize  Courts.  So  far,  there- 
fore, as  the  Prize  Court  Rules  relate  to  procedure  and  practice 
they  have  statutory  force  and  are,  undoubtedly,  binding.  But 
Order  XXIX.,  r.  1,  construed  as  an  imperative  direction  to  the 
judge  is  not  merely  a  rule  of  procedure  or  practice.  ...  If, 
therefore,  Order  XXIX.,  rule  1,  construed  as  an  imperative 
direction  be  binding,  it  must  be  by  virtue  of  some  power  vested 
in  the  King  in  Council  otherwise  than  by  virtue  of  the  Act  of 
1894.  It  was  contended  by  the  Attorney-General  that  the  King 
in  Council  has  such  a  power  by  virtue  of  the  Royal  prerogative, 
and  their  Lordships  will  proceed  to  consider  this  contention. 

The  idea  that  the  King  in  Council,  or  indeed  any  branch  of 
the  Executive,  has  power  to  prescribe  or  alter  the  law  to  be 
administered  by  Courts  of  law  in  this  country  is  out  of  harmony 
with  the  principles  of  our  Constitution.  It  is  true  that,  under 
a  number  of  modern  statutes,  various  branches  of  the  Executive 
have  power  to  make  rules  having  the  force  of  statutes,  but  all 
such  rules  derive  their  validity  from  the  statute  which  creates 
the  power,  and  not  from  the  executive  body  by  which  they  are 
made.  No  one  would  contend  that  the  prerogative  involves  any 
power  to  prescribe  or  alter  the  law  administered  in  Courts  of 
Common  Law  or  Equity.  It  is,  however,  suggested  that  the 
manner  in  which  Prize  Courts  in  this  country  are  appointed  and 
the  nature  of  their  jurisdiction  differentiate  them  in  this  respect 
from  other  Courts. 

Prior  to  the  Naval  Prize  Act,  1864  [27  &  28  Viet.  c.  25],  juris- 
diction in  matters  of  prize  was  exercised  by  the  High  Court  of 
Admiralty,  by  virtue  of  a  commission  issued  by  the  Crown  under 
the  Great  Seal  at  the  commencement  of  each  war.  The  commis- 
sion no  doubt  owed  its  validity  to  the  prerogative,  but  it  cannot 
on  that  account  be  properly  inferred  that  the  prerogative  ex- 
tended to  prescribing  or  altering  the  law  to  be  administered  from 
time  to  time  under  the  jurisdiction  thereby  conferred.  The 
Courts  of  Common  Law  and  Equity  in  like  manner  originated 
in  an  exercise  of  the  prerogative.  The  form  of  commission  con- 
ferring jurisdiction  in  prize  on  the  Court  of  Admiralty  was 
always  substantially  the  same.  Their  Lordships  will  take  that 


THE  ZAMORA.  621 

quoted  by  Lord  Mansfield  in  Lindo  v.  Rodney  (1782),  2  Doug. 
612,  n.,  614,  n.,  as  an  example.  It  required  and  authorized  the 
Court  of  Admiralty  "to  proceed  upon  all  and  all  manner  of 
captures,  seizures,  prizes,  and  reprisals,  of  all  ships  and  goods, 
that  are,  or  shall  be,  taken ;  and  to  hear  and  determine,  accord- 
ing to  the  course  of  the  Admiralty,  and  the  law  of  nations. ' '  If 
these  words  be  considered,  there  appear  to  be  two  points  requir- 
ing notice,  and  each  of  them,  so  far  from  suggesting  any  reason 
why  the  prerogative  should  extend  to  prescribing  or  altering 
the  law  to  be  administered  by  a  Court  of  Prize,  suggests  strong 
grounds  why  it  should  not. 

In  the  first  place,  all  those  matters  upon  which  the  Court  is 
authorized  to  proceed  are,  or  arise  out  of,  acts  done  by  the 
sovereign  power  in  right  of  war.  It  follows  that  the  King  must, 
directly  or  indirectly,  be  a  party  to  all  proceedings  in  a  Court 
of  Prize.  In  such  a  Court  his  position  is  in  fact  the  same  as  in 
the  ordinary  Courts  of  the  realm  upon  a  petition  of  right  which 
has  been  duly  fiated.  Rights  based  on  sovereignty  are  waived 
and  the  Crown  for  most  purposes  accepts  the  position  of  an 
ordinary  litigant.  A  Prize  Court  must  of  course  deal  judicially 
with  all  questions  which  come  before  it  for  determination,  and 
it  would  be  impossible  for  it  to  act  judicially  if  it  were  bound  to 
take  its  orders  from  one  of  the  parties  to  the  proceedings. 

In  the  second  place,  the  law  which  the  Prize  Court  is  to  ad- 
minister is  not  the  national  or,  as  it  is  sometimes  called,  the 
municipal  law,  but  the  law  of  nations — in  other  words,  inter- 
national law.  Of  course,  the  Prize  Court  is  a  municipal  Court, 
and  its  decrees  and  orders  owe  their  validity  to  municipal  law. 
The  law  which  it  enforces  may  therefore,  in  one  sense,  be  con- 
sidered a  branch  of  municipal  law.  Nevertheless,  this  distinc- 
tion between  municipal  and  international  law  is  well  defined.  A 
Court  which  administers  municipal  law  is  bound  by  and  gives 
effect  to  the  law  as  laid  down  by  the  sovereign  State  which  calls 
it  into  being.  It  need  inquire  only  what  that  law  is,  but  a  Court 
which  administers  international  law  must  ascertain  and  give 
effect  to  a  law  which  is  not  laid  down  by  any  particular  State, 
but  originates  in  the  practice  and  usage  long  observed  by  civil- 
ized nations  in  their  relations  towards  each  other  or  in  express 
international  agreement.  It  is  obvious  that,  if  and  so  far  as  a 
Court  of  Prize  in  this  country  is  bound  by  and  gives  effect  to 
Orders  of  the  King  in  Council  purporting  to  prescribe  or  alter 
the  international  law,  it  is  administering  not  international  law 


622  PRIZE  LAW  AND  PRIZE  COURTS. 

but  municipal  law;  for  an  exercise  of  the  prerogative  cannot 
impose  legal  obligation  on  any  one  outside  the  King's  dominions 
who  is  not  the  King's  subject.  If  an  Order  in  Council  were 
binding  on  the  Prize  Court,  such  Court  might  be  compelled  to 
act  contrary  to  the  express  terms  of  the  commission  from  which 
it  derived  its  jurisdiction. 

There  is  yet  another  consideration  which  points  to  the  same 
conclusion.  The  acts  of  a  belligerent  Power  in  right  of  war  are 
not  justiciable  in  its  own  Courts  unless  such  Power,  as  a  matter 
of  grace,  submit  to  their  jurisdiction.  Still  less  are  such  acts 
justiciable  in  the  Courts  of  any  other  Power.  As  is  said  by 
Story  J.  in  the  case  of  The  Invincible  [1814],  2  Gall.  28,  44,  "the 
acts  done  under  the  authority  of  one  Sovereign  can  never  be 
subject  to  the  revision  of  the  tribunals  of  another  Sovereign :  and 
the  parties  to  such  acts  are  not  responsible  therefor  in  their  pri- 
vate capacities."  It  follows  that  but  for  the  existence  of  Courts 
of  Prize  no  one  aggrieved  by  the  acts  of  a  belligerent  Power  in 
times  of  war  could  obtain  redress  otherwise  than  through  diplo- 
matic channels  and  at  the  risk  of  disturbing  international  amity. 
An  appropriate  remedy  is,  however,  provided  by  the  fact  that, 
according  to  international  law,  every  belligerent  Power  must 
appoint  and  submit  to  the  jurisdiction  of  a  Prize  Court  to  which 
any  person  aggrieved  by  its  acts  has  access,  and  which  adminis- 
ters international  as  opposed  to  municipal  law — a  law  which  is 
theoretically  the  same,  whether  the  Court  which  administers  it 
is  constituted  under  the  municipal  law  of  the  belligerent  Power 
or  of  the  Sovereign  of  the  person  aggrieved,  and  is  equally  bind- 
ing on  both  parties  to  the  litigation.  It  has  long  been  well 
settled  by  diplomatic  usage  that,  in  view  of  the  remedy  thus 
afforded,  a  neutral  aggrieved  by  any  act  of  a  belligerent  Power 
cognisable  in  a  Court  of  Prize  ought,  before  resorting  to  diplo- 
matic intervention,  to  exhaust  his  remedies  in  the  Prize  Courts 
of  the  belligerent  Power.  A  case  for  such  intervention  arises 
only  if  the  decisions  of  those  Courts  are  such  as  to  amount  to  a 
gross  miscarriage  of  justice.  It  is  obvious,  however,  that  the 
reason  for  this  rule  of  diplomacy  would  entirely  vanish  if  a 
Court  of  Prize,  while  nominally  administering  a  law  of  inter- 
national obligation,  were  in  reality  acting  under  the  direction  of 
the  Executive  of  the  belligerent  Power. 

It  cannot,  of  course,  be  disputed  that  a  Prize  Court,  like  any 
other  Court,  is  bound  by  the  legislative  enactments  of  its  own 
sovereign  State.  A  British  Prize  Court  would  certainly  be 


THE  ZAMOBA.  623 

bound  by  Acts  of  the  Imperial  Legislature.  But  it  is  none  the 
less  true  that  if  the  Imperial  Legislature  passed  an  Act  the  pro- 
visions of  which  were  inconsistent  with  the  law  of  nations,  the 
Prize  Court  in  giving  effect  to  such  provisions  would  no  longer 
be  administering  international  law.  It  would  in  the  field  cov- 
ered by  such  provisions  be  deprived  of  its  proper  function  as  a 
Prize  Court.  Even  if  the  provisions  of  the  Act  were  merely 
declaratory  of  the  international  law,  the  authority  of  the  Court 
as  an  interpreter  of  the  law  of  nations  would  be  thereby  mate- 
rially weakened,  for  no  one  could  say  whether  its  decisions  were 
based  on  a  due  consideration  of  international  obligations,  or  on 
the  binding  nature  of  the  Act  itself.  The  fact,  however,  that 
the  Prize  Courts  in  this  country  would  be  bound  by  Acts  of  the 
Imperial  Legislature  affords  no  ground  for  arguing  that  they 
are  bound  by  the  executive  orders  of  the  King  in  Council. 

In  connection  with  the  foregoing  considerations,  their  Lord- 
ships attach  considerable  importance  to  the  Report  dated  Janu- 
ary 18,  1753,  of  the  Committee  appointed  by  His  Britannic 
Majesty  to  reply  to  the  complaint  of  Frederick  II.  of  Prussia  as 
to  certain  captures  of  Prussian  vessels  made  by  British  ships 
during  the  war  with  France  and  Spain,  which  broke  out  in  1744. 
By  way  of  reprisals  for  these  captures  the  Prussian  King  had 
suspended  the  payment  of  interest  on  the  Silesian  Loan.  The 
Report,  which  derives  additional  authority  from  the  fact  that 
it  was  signed  by  Mr.  William  Murray,  then  Solicitor-General, 
afterwards  Lord  Mansfield,  contains  a  valuable  statement  as  to 
the  law  administered  by  Courts  of  Prize.  This  is  stated  to  be 
the  law  of  nations,  modified  in  some  cases  by  particular  treaties. 
"If,"  says  the  Report,  "a  subject  of  the  King  of  Prussia  is  in- 
jured by,  or  has  a  demand  upon  any  person  here,  he  ought  to 
apply  to  your  Majesty's  Courts  of  justice,  which  are  equally 
open  and  indifferent  to  foreigner  or  native;  so,  vice  versa,  if  a 
subject  here  is  wronged  by  a  person  living  in  the  dominions  of 
His  Prussian  Majesty,  he  ought  to  apply  for  redress  in  the  King 
of  Prussia's  Courts  of  justice.  If  the  matter  of  complaint  be  a 
capture  at  sea  during  war,  and  the  question  relative  to  prize,  he 
ought  to  apply  to  the  jurisdictions  established  to  try-  these 
questions.  The  law  of  nations,  founded  upon  justice,  equity, 
conscience,  and  the  reason  of  the  thing,  and  confirmed  by  long 
usage,  does  not  allow  of  reprisals,  except  in  case  of  violent  in- 
juries directed  or  supported  by  the  State,  and  justice  absolutely 
denied  in  re  minime  dubia  by  all  the  tribunals,  and  afterwards 


624  PRIZE  LAW  AND  PRIZE  COURTS. 

by  the  Prince.  Where  the  judges  are  left  free,  and  give  sen- 
tence according  to  their  conscience,  though  it  should  be  erro- 
neous, that  would  be  no  ground  for  reprisals.  Upon  doubtful 
questions  different  men  think  and  judge  differently;  and  all  a 
friend  can  desire  is,  that  justice  should  be  impartially  admin- 
istered to  him,  as  it  is  to  the  subjects  of  that  Prince  in  whose 
Courts  the  matter  is  tried. ' '  The  Report  further  points  out  that 
in  England  "the  Crown  never  interferes  with  the  course  of 
justice.  No  order  or  any  intimation  is  ever  given  to  any  judge." 
It  also  contains  the  following  statement:  "All  captures  at  sea, 
as  prize,  in  time  of  war,  must  be  judged  of  in  a  Court  of  Ad- 
miralty, according  to  the  law  of  nations  and  particular  treaties, 
where  there  are  any.  There  never  existed  a  case  where  a  Court, 
judging  according  to  the  laws  of  England  only,  ever  took  cog- 
nizance of  prize  ...  it  never  was  imagined  that  the  property 
of  a  foreign  subject,  taken  as  prize  on  the  high  seas,  could  be 
affected  by  laws  peculiar  to  England."  See  Collectanea  Jurid- 
ica,  vol.  1,  pp.  138,  147,  152.  This  Report  is,  in  their  Lordships' 
opinion,  conclusive  that  in  1753  any  notion  of  a  Prize  Court 
being  bound  by  the  executive  orders  of  the  Crown,  or  having  to 
administer  municipal  as  opposed  to  international  law,  was  con- 
trary to  the  best  legal  opinion  of  the  day. 

The  Attorney-General  was  unable  to  cite  any  case  in  which 
an  Order  of  the  King  in  Council  had  as  to  matters  of  law  been 
held  to  be  binding  on  a  Court  of  Prize.  He  relied  chiefly  on  the 
judgment  of  Lord  Stowell  in  the  case  of  The  Fox  [1811],  Edw. 
311 ;  2  Eng.  P.  C.  61.  The  actual  decision  in  this  case  was  to 
the  effect  that  there  was  nothing  inconsistent  with  the  law  of 
nations  in  certain  Orders  in  Council  made  by  way  of  reprisals 
for  the  Berlin  and  Milan  Decrees,  though  if  there  had  been  no 
case  for  reprisals  the  Orders  would  not  have  been  justified  by 
international  law.  .  .  .  The  judgment  of  Lord  Stowell  con- 
tains, however,  a  remarkable  passage  quoted  in  full  in  the  Court 
below,  which  refers  to  the  King  in  Council  possessing  "legisla- 
tive rights"  over  a  Court  of  Prize  analogous  to  those  possessed 
by  Parliament  over  the  Courts  of  common  law.  At  most  tkis 
amounts  to  a  dictum,  and  in  their  Lordship's  opinion,  with  all 
due  respect  to  so  great  an  authority,  the  dictum  is  erroneous.  It 
is,  in  fact,  quite  irreconcilable  with  the  principles  enunciated  by 
Lord  Stowell  himself.  .  .  .  [The  learned  judge  here  quotes 
from  The  Maria,  1  C.  Robinson,  340,  350.] 

There  are  two  further  points  requiring  notice  in  this  part  of 


NOTE.  625 

the  case.  The  first  arises  on  the  argument  addressed  to  the 
Board  by  the  Solicitor-General.  It  may  be,  he  said,  that  the 
Court  would  not  be  bound  by  an  Order  in  Council  which  is  mani- 
festly contrary  to  the  established  rules  of  international  law,  but 
there  are  regions  in  which  such  law  is  imperfectly  ascertained 
and  defined;  and,  when  this  is  so,  it  would  not  be  unreasonable 
to  hold  that  the  Court  should  subordinate  its  own  opinion  to  the 
directions  of  the  Executive.  This  argument  is  open  to  the  same 
objection  as  the  argument  of  the  Attorney-General.  If  the 
Court  is  to  decide  judicially  in  accordance  with  what  it  con- 
ceives to  be  the  law  of  nations,  it  cannot,  even  in  doubtful  cases, 
take  its  directions  from  the  Crown,  which  is  a  party  to  the  pro- 
ceedings. It  must  itself  determine  what  the  law  is,  according  to 
the  best  of  its  ability,  and  its  view,  with  whatever  hesitation  it 
be  arrived  at,  must  prevail  over  any  executive  order.  Only  in 
this  way  can  it  fulfill  its  functions  as  a  Prize  Court  and  justify 
the  confidence  which  other  nations  have  hitherto  placed  in  its 
decisions. 

The  second  point  requiring  notice  is  this.  It  does  not  follow 
that,  because  Orders  in  Council  cannot  prescribe  or  alter  the 
law  to  be  administered  by  the  Prize  Court,  such  Court  will  ig- 
nore them  entirely.  On  the  contrary,  it  will  act  on  them  in 
every  case  in  which  they  amount  to  a  mitigation  of  the  Crown 
rights  in  favour  of  the  enemy  or  neutral,  as  the  case  may  be. 
.  .  .  Further,  the  Prize  Court  will  take  judicial  notice  of 
every  Order  in  Council  material  to  the  consideration  of  matters 
with  which  it  has  to  deal,  and  will  give  the  utmost  weight  and 
importance  to  every  such  Order  short  of  treating  it  as  an  author- 
itative and  binding  declaration  of  law.  .  .  .  Further,  it 
cannot  be  assumed,  until  there  be  a  decision  of  the  Prize  Court 
to  that  effect,  that  any  executive  order  is  contrary  to  law,  and 
all  such  orders,  if  acquiesced  in  and  not  declared  to  be  illegal, 
will,  in  course  of  time,  be  themselves  evidence  by  which  interna- 
tional law  and  usage  may  be  established.  .  .  . 

On  this  part  of  the  case,  therefore,  their  Lordships  hold  that 
Order  XXIX.,  r.  1,  of  the  Prize  Court  Rules,  construed  as  an 
imperative  direction  to  the  Court,  is  not  binding.  .  .  .  Their 
Lordships  will  humbly  advise  His  Majesty  accordingly.  .  .  . 

NOTE. — In  Great  Britain  the  Admiralty  Division  of  the  High  Court 
of  Justice  is  vested  with  jurisdiction  over  all  matters  of  prize  aris- 
ing on  the  high  seas,  or  in  any  part  of  the  British  dominions  or  in 
any  place  where  the  Crown  has  jurisdiction.  In  the  British  posses- 


v 
626  PRIZE  LAW  AND  PRIZE  COURTS. 

sions,  prize  jurisdiction  is  vested  either  in  the  Colonial  Courts  of 
Admiralty  or  in  a  Vice-Admiralty  Court.  Such  jurisdiction  is  not 
inherent,  but  is  derived  from  a  special  commission  of  the  Crown  or 
warrant  of  the  Admiralty  authorizing  the  court  to  act  as  a  prize 
court.  An  appeal  lies  from  all  the  prize  courts  to  the  Judicial  Com- 
mittee of  the  Privy  Council.  For  an  interesting  account  of  British 
prize  jurisdiction  see  the  address  of  the  Attorney  General  at  the 
opening  session  of  the  British  Prize  Court  on  September  4,  1914,  best 
reported  in  1  British  and  Colonial  Prize  Cases,  2. 

In  the  United  States,  prize  jurisdiction  is  vested  in  the  District 
Courts  without  special  commission.  An  appeal  lies  to  the  Supreme 
Court.  The  court  of  that  district  into  which  the  captured  property 
is  first  taken  has  jurisdiction  without  regard  to  the  place  of  capture, 
The  Prize  Cases  (1863),  2  Black,  635.  In  both  Great  Britain  and  the 
United  States  the  prize  courts  are  true  judicial  tribunals  and  are 
always  composed  of  judges.  In  other  countries  the  court  is  often 
composed  in  whole  or  in  part  of  administrative  officials  without  ju- 
dicial training.  In  Germany  only  two  of  the  five  judges  are  lawyers. 
The  Russian  prize  courts  are  largely  composed  of  naval  officers.  One 
of  the  most  important  conventions  adopted  at  The  Hague  in  1907 
provided  for  the  establishment  of  an  international  prize  court  to 
which  an  appeal  would  lie  from  the  municipal  prize  courts.  It  was 
to  provide  a  code  of  maritime  law  for  the  use  of  the  proposed  court 
that  the  Naval  Conference  was  assembled  in  1908-1909  which  pre- 
pared the  Declaration  of  London.  On  the  international  prize  court 
and  the  Declaration  of  London  see  Bentwich,  The  Declaration  of  Lon- 
don; Hershey,  Essentials,  524;  Higgins,  The  Hague  Peace  Conferences, 
ch.  xii;  Holland,  War  and  Neutrality,  150;  Hull,  The  Two  Hague 
Conferences,  427;  Int.  Law  Topics,  1909;  Ib.,  1915,  93;  Scott,  The 
Hague  Peace  Conferences  of  1899  and  1907,  I,  ch.  x;  C.  N.  Gregory, 
The  Proposed  International  Prize  Court  and  Some  of  its  Difficulties," 
Am.  Jour.  Int.  Law,  II,  458;  H.  B.  Brown,  "The  Proposed  International 
Prize  Court,"  Ib.  II,  476;  C.  H.  Stockton,  "The  International  Naval 
Conference  of  London,  1908-1909,"  Ib.  Ill,  596;  papers  on  the  Dec- 
laration of  London  by  Arthur  Cohen,  K.  C.,  Sir  John  Macdonnell  and 
Dr.  Thomas  Baty  in  Report  of  the  26th  Conference  of  the  International 
Law  Association,  67,  89,  115.  The  Declaration  of  London  was  never 
put  into  effect. 

Prize,  as  defined  by  Lord  Mersey,  is  the  term  applied  to  a  ship  or 
goods  captured  jure  belli  by  the  maritime  force  of  a  belligerent  at 
sea  or  seized  in  port.  Earl  of  Halsbury,  The  Laws  of  England,  XXIII, 
276.  This  definition,  by  one  of  the  most  eminent  authorities  on  ad- 
miralty law,  is  not  sufficiently  comprehensive  to  include  a  number 
of  decided  cases.  In  The  Roumanian  (1914),  L.  R.  [1915]  P.  26,  the 
British  Prize  Court  held  that  a  cargo  of  oil  belonging  to  a  German 
company  which  had  been  shipped  before  the  outbreak  of  war  on  a 
British  tank-steamer  bound  from  Port  Arthur,  Texas,  to  Hamburg, 
but  diverted  by  the  Admiralty  to  a  British  port  where  a  part  of  it 
had  been  pumped  into  tanks  on  land  and  afterward  seized  as  prize, 
was  subject  to  maritime  capture.  "It  came  into  the  port,"  said  Sir 


NOTE.  627 

Samuel  Evans,  "as  maritime  merchandise  of  the  enemy  subject  to 
seizure,  and  in  my  opinion  the  whole  of  it  remained  such,  until  it 
was  actually  formally  seized  on  behalf  of  the  Crown."  And  the 
learned  President  indicated  that  his  decision  would  be  the  same 
whether  the  tanks  were  within  the  port  or  not. 

In  an  excellent  discussion  of  the  subject  in  Ten  Bales  of  Silk  at 
Port  Said  (Egypt,  1916),  2  Br.  &  Col.  P.  C.  247,  President  Gator  formu- 
lated the  governing  principle  in  these  words: 

In  examining  the  cases  and  pondering  upon  the  principles 
which  determine  whether  goods  are  capable  of  being  made 
prize  or  not,  it  has  been  borne  in  upon  me  that  the  determin- 
ing factor  is  not  whether  the  goods  are  referable  to  any  par- 
ticular ship,  or  whether  they  came  into  the  country  stamped 
with  a  hostile  character,  but  whether,  when  the  Crown  lays  its 
hands  upon  them,  they  are  cargo  or  not  cargo. 

President  Gator's  principle  of  "cargo  or  not  cargo"  was  applied  in 
the  Achaia  (No.  2)  (Egypt,  1915),  1  Br.  &  Col.  P.  C.  635,  and  the 
decision  in  The  Eden  Hall  (1916),  2  Ib.  84,  might  also  have  been 
based  upon  it.  In  The  Thalia  (1905),  Takahashi,  605,  the  Prize  Court 
of  Japan  held  that  a  Russian  vessel  which  had  been  loaded  upon 
another  vessel  and  conveyed  before  the  outbreak  of  war  to  a  ship 
yard  in  Japan  and  placed  on  dry  land  for  repairs  was  because  of  its 
nature  a  maritime  prize  subject  to  seizure  and  condemnation.  Naval 
stores '  captured  at  a  naval  station  by  a  naval  force  and  as  a  result 
of  a  naval  engagement  are  subject  of  prize,  but  barges  propelled  by 
sweeps  and  polls,  and  non-seagoing  floating  derricks  or  wrecking 
boats  are  not,  The  Manila  Prize  Cases  (1903),  188  U.  S.  254.  A  launch 
and  sixteen  lighters  which,  upon  the  approach  of  the  British  forces 
to  certain  ports  in  German  Southwest  Africa,  has  been  loaded  by  the 
German  naval  commander  upon  railway  cars  and  shipped  to  points 
148  and  310  miles  inland,  where  they  were  captured  by  the  British 
six  months  later,  were  not  a  subject  of  maritime  prize,  The  Anichab 
(1921),  L.  R.  [1922]  1  A.  C.  235.  A  Belgian  yacht  which  was  in  the 
harbor  of  Antwerp  when  the  city  was  captured  by  the  Germans  and 
which  was  seized  by  the  commander  of  the  port  .was  condemned  on 
the  ground  that  seizures  by  troops  or  port  authorities  are  within 
prize  jurisdiction,  The  Primavera  (Germany,  1916),  Entscheidungen, 
194.  Captures  made  on  inland  lakes  which  have  no  outlet  to  the  sea 
are  subject  to  the  law  of  prize,  In  the  Matter  of  Certain  Craft  Cap- 
tured on  the  Victoria  Nyanza  (1918),  L.  R.  [1919]  P.  83.  It  also 
applies  to  vessels  seized  while  at  anchor  in  inland  rivers,  The  Cer- 
vignano  (Italy,  1917),  Gazzetta  Ufflciale,  April  23,  1917.  In  the  Ameri- 
can Civil  War  captures  made  upon  inland  waters  by  the  naval  forces 
of  the  United  States  were  by  statute  exempt  from  condemnation  as 
maritime  prize,  The  Cotton  Plant  (1871),  10  Wallace,  577. 

In  The  Antares  (1915),  1  Br.  &  Col.  P.  C.  261,  271,  Sir  Samuel 
Evans  said: 

It  is  the  theory  of  the  old  Prize  Courts,  and  I  think  it  is  a 


628  PRIZE  LAW  AND  PRIZE  COURTS. 

very  sound  one,  that  the  Crown  themselves  capture  or  seize 
a  vessel,  and  the  persons  whose  property  is  seized  must  come 
in  the  course  of  proceedings  prepared  to  give  grounds  why 
their  property  is  not  confiscable.  It  is  enough  for  the  Crown 
to  say,  "We  regard  this  vessel  or  this  cargo  as  prize  and  we 
seize  it  as  prize,  and  we  issue  a  writ  against  you  in  which  we  tell 
you  that  we  are  going  to  ask  the  Court  for  its  condemnation." 
Thereupon  the  other  parties  must  file  their  claim,  and  it  is 
for  them  to  show  that  the  seizure  and  capture  by  the  Crown 
were  not  rightfully  made. 

Prize  courts  are  courts  of  international  law, — "that  is,"  in  the  words 
of  Sir  Samuel  Evans,  "the  law  which  is  generally  understood  and 
acknowledged  to  be  the  existing  law  applicable  between  nations  by  the 
general  body  of  enlightened  legal  opinion,"  The  Odessa  (1914),  L.  R. 
[1915]  P.  52.  Hence  when  a  neutral  claimant  declared  that  the  stat- 
utes of  his  country  forbade  his  presenting  the  evidence  which  the 
court  required,  Lord  Parker  of  Waddington,  in  The  Consul  Corfitzon 
(1917),  L.  R.  [1917]  A.  C.  550,  replied: 

Their  Lordships  are  clearly  of  opinion  that  a  Court  of  Prize 
cannot  properly  be  deterred  from  making  what  it  conceives 
to  be  the  appropriate  order  because  a  neutral  claimant  would, 
if  he  obeyed  the  order,  be  guilty  of  a  breach  of  his  own  mu- 
nicipal law.  The  substantive  law  administered  by  the  Court 
Is  international  law,  which  cannot  be  affected  by  the  munici- 
pal legislation  of  any  one  State,  and  its  practice  and  procedure 
are  governed  by  the  municipal  law  of  the  State  from  which 
it  derives  its  jurisdiction,  and  cannot  be  modified  by  the  mu- 
nicipal legislation  of  any  other  State. 

If  however  a  country  enacts  legislation  which  conflicts  with  the 
established  rules  of  international  law,  such  legislation  is  binding 
upon  its  prize  courts,  The  Eir  (France,  1916),  Journal  Offlciel,  August 
17,  1916;  The  Prins  Hendrick  (Germany  1917),  Entscheidungen,  321. 
The  determination  of  questions  of  prize  belongs  exclusively  to  the 
country  of  the  captor,  L'Invincible  (1816),  1  Wheaton,  238.  The 
prize  court  of  an  ally  has  no  jurisdiction,  Glass  v.  Sloop  Betsey  (1794), 

3  Dallas,  6,  but  a  prize  court  in  the  territory  of  an  ally  may  con- 
demn, The  Christopher  (1799),  2  C.  Robinson,  209.    A  belligerent  may 
not  set  up  a  prize  court   in  a  neutral  country,  Wheelwright   v.   De 
Peyster    (1806),  1  Johnson   (N.  Y.)    471,  481.     There  are  exceptional 
cases  in  which  a  prize  court  sitting  in  a  belligerent  state  has  con- 
demned a  prize  lying  in  a  neutral  port,  The  Henrick  and  Maria  (1799), 

4  C.  Robinson,  43;    Hudson  v.  Guestier    (1808),  4   Cranch,   293;    The 
Polka   (1854),  Spinks,  57;   but  in  the  opinion  which  he  delivered  in 
the  last  case  the  eminent  judge  Dr.  Lushington  said  that  "this  case  is 
decided  upon  its  own  peculiar  circumstances,  and  is  not  to  be  con- 
sidered as  a  precedent  for  the  condemnation  of  a  prize  while  lying 
In  a  neutral  port."     To  ask  a  neutral  to  allow  its  ports  to  fee  used 
as  places  of  deposit   for  captured  vessels  which  cannot  be  taken  to 


NOTE.  629 

a  port  of  the  captor  is  to  ask  it  to  abandon  its  neutrality.  The  doc- 
trine of  the  cases  cited  above  is  now  generally  condemned.  It  was 
embodied  in  article  23  of  Convention  XIII,  adopted  at  The  Hague  in 
1907,  but  this  article  was  rejected  by  Great  Britain,  Japan,  Siam  and 
the  United  States. 

A  prize  court  not  only  has  exclusive  jurisdiction  of  all  questions  of 
prize  or  no  prize  but  also  of  all  the  incidents  which  depend  for  their 
determination  on  the  question  of  prize  or  no  prize.  Hence  an  action 
for  false  imprisonment  based  on  the  detention  of  a  passenger  on  a 
vessel  whch  it  was  alleged  had  been  wrongfully  captured  could  not 
be  heard  by  a  common  law  court,  for  the  question  of  the  validity  of 
the  capture  could  only  be  determined  by  a  prize  court,  Le  Caux  v. 
Eden  (1781),  2  Douglas,  594.  So  when  a  voyage,  was  interrupted  by 
capture  and  was  continued  to  a  different  port  determined  by  the 
captors,  a  claim  for  freight  could  only  be  heard  by  a  prize  court, 
since  the  right  to  the  freight  contracted  for  at  the  beginning  of  the 
voyage  was  lost  by  the  interruption  of  the  voyage  and  the  only  freight 
recoverable  would  be  that  which  the  prize  court  might  award,  The 
Corsican  Prince  (1915),  L.  R.  [1916]  P.  195;  The  St.  Helena  (1916), 
L.  R.  [1916]  2  A.  C.  625.  But  when  goods  have  been  effectively  re- 
leased to  a  claimant,  no  question  involving  the  jus  belli  remains  for 
determination  and  the  jurisdiction  of  the  prize  court  comes  to  an 
end,  Egyptian  Bonded  Warehouses  Co.  Ltd.  v.  Yeyasu  Goshi  Kaisha 
(1921),  L.  R.  [1922]  1  A.  C.  111.  For  further  discussion  of  the  in- 
cidental jurisdiction  of  prize  courts  see  The  Anna  Christiana  (1778), 
Hay  and  Marriott,  161;  Smart  v.  Wolf  (1789),  3  T.  R.  323;  The 
Copenhagen  (1799),  1  C.  Robinson,  289;  The  Race  Horse  (1800),  3 
Ib.  101;  The  Diana  (1803),  5  Ib.  60;  Faith  v.  Pearson  (1815),  4 
Campbell,  357;  The  Antonia  Johanna  (1816),  1  Wheaton,  159;  The 
Nassau  (1866),  4  Wallace,  634. 

The  capture  of  a  vessel  or  cargo  does  not  transfer  title.  That  can 
be  effected  only  by  a  decree  of  a  prize  court  of  competent  jurisdiction, 
The  Nassau  (1867),  4  Wallace,  634;  Oakes  v.  United  States  (1899), 
174  U.  S.  778,  789;  The  Brig  Fair  Columbian  (1913),  49  Ct.  Cl.  133. 
Pending  condemnation  or  restitution  the  captured  property  or  its 
proceeds  are  held  by  the  captor  in  trust  for  those  who  may  finally  be 
proved  to  be  entitled  to  it,  The  Nassau  (1867),  4  Wallace,  634,  but 
a  decree  of  condemnation  relates  back  to  the  time  of  capture,  Goss- 
v.  Withers  (1758),  2  Burrow,  683;  Stevens  v.  Bagwell  (1808),  15  Ves. 
Jr.  139.  As  seizure  is  merely  the  assertion  of  a  right  to  capture,  it 
Is  the  captor's  duty  to  take  his  prize  before  a  prize  court  as  soon 
as  possible.  Unnecessary  delay  may  result  in  a  decree  of  demurrage 
by  way  of  damages,  The  Corier  Maritimo  (1799),  1  C.  Robinson,  287; 
The  Peacock  (1802),  4  Ib.  185;  Slocum  v.  Mayberry  (1817),  2  Wheaton, 
1;  The  Nuestra  Senora  de  Regla  (1882),  108  U.  S.  92.  A  delay  of 
one  month  was  held  to  be  unreasonable  in  ,  The  St.  Juan  Baptista 
(1803),  5  C.  Robinson,  33.  A  claimant  also  may  lose  his  rights  by 
undue  delay,  The  Susanna  (1805),  6  Ib.  48.  While  it  is  the  duty  of 
a  captor  to  take  in  his  prize  for  adjudication,  he  may  under  imperative 
circumstances  sell  it  and  submit  the  proceeds  to  the  prize  court,  Jecker 


630  PRIZE  LAW  AND  PRIZE  COURTS. 

v.  Montgomery  (1852),  13  Howard,  498,  516.  In  The  Erymanthos, 
Cargo  Ex,  (Malta,  1915),  the  court  held  that  if  enemy  property  con- 
signed to  a  British,  allied,  or  neutral  subject  under  a  contract  hy 
which  title  had  passed  to  the  buyer  be  captured  before  payment,  pay- 
ment is  to  be  made  to  the  Crown,  on  the  theory  that  the  goods  when 
restored  are  put  in  their  original  condition  as  to  the  seller's  lien, 
and  the  seller  being  an  enemy,  his  rights  pass  to  the  Crown.  Jour. 
Soc.  Comp.  Leg.,  XVI,  (N.  S.)  70. 

In  extreme  cases  enemy  vessels  captured  as  prize  may  be  destroyed. 
The  Felicity  (1819),  2  Dodson,  381,  but  if  the  vessel  proves  not  to 
have  been  an  enemy  vessel,  the  captors  must  pay  the  full  value  of 
the  property  destroyed  even  though  if  brought  before  a  prize  court 
it  would  have  been  confiscated,  The  Actaeon  (1815),  2  Dodson,  48. 
But  recent  regulations  as  to  destruction  of  prizes  issued  by  various 
governments  do  not  distinguish  between  enemy  and  neutral  vessels. 
See  Wilson,  Handbook,  306;  Int.  Law  Topics,  1905,  62;  Int.  Law  Sit- 
uations, 1907,  74;  Ib.,  1911,  51;  Atherley-Jones,  528;  Barclay,  Problems, 
99;  Lawrence,  War  and  Neutrality  in  the  Far  East,  250;  Garner, 
ch.  xv ;  Smith  and  Sibley,  International  Law,  ch.  xii.  Whenever  a 
captor  brings  goods  to  the  port  of  actual  destination  according  to  the 
intent  of  the  contracting  parties  he  is  entitled  to  the  freight  because 
he  has  complied  with  the  terms  of  the  contract,  but  in  any  other 
case  he  is  entitled  to  no  freight  at  all,  even  though  the  vessel  has 
performed  a  large  part  of  its  voyage.  In  The  Vrow  Henrica  (1803), 
4  C.  Robinson,  343,  Lord  Stowell  said,  "Freight  is,  in  all  ordinary 
cases,  a  lien  which  is  to  take  the  place  of  all  others.  The  captor 
takes  cum  onere."  See  also  The  Der  Mohr  (1800),  3  C.  Robinson,  129, 
(1802),  4  Ib.  315;  The  Fortuna  (1802),  4  Ib.  278;  The  Vrow  Anna 
Catherina  (1806),  6  Ib.  269;  The  Antonia  Johanna  (1816),  1  Wheaton, 
159;  Hooper,  Adm.  v.  United  States  (1887),  22  Ct.  Cl.  408;  The  Roland 
(1915),  1  Br.  &  Col.  P.  C.  188.  The  title  to  all  property  captured 
vests  in  the  state  of  the  captor,  The  Manila  Prize  Cases  (1903),  188 
U.  S.  254,  and  hence  at  any  time  prior  to  condemnation  the  state 
may  order  the  property  released  to  its  former  owner,  The  Elsebe 
(1804),  5  C.  Robinson,  155;  The  St.  Ivan  (1811),  Edwards,  376.  But 
such  release  does  not  prevent  the  captor  from  proceeding  to  adjudi- 
cation, The  Mercurius  (1798),  1  C.  Robinson,  80.  The  sentence  of 
condemnation  by  a  prize  court  having  jurisdiction  completely  ex- 
tinguishes the  title  of  the  original  proprietor  and  transfers  title  to 
the  state  or  sovereign  of  the  captor,  The  Brig  Fair  Columbian  (1913), 
49  Ct.  Cl.  133.  Since  the  judgment  of  a  prize  court  is  a  proceeding  in 
rem  it  is  conclusive  as  to  all  matters  decided  and  within  its  juris- 
diction, and  is  a  protection  to  all  persons  who  derive  their  claims 
from  the  captor,  Hudson  v.  Guestier  (1810),  6  Cranch,  281;  Gushing 
v.  Laird  (1882),  107  U.  S.  69,  but  a  decree  may  be  made  the  basis 
of  a  diplomatic  protest,  Gushing  v.  United  States  (1886),  22  Ct.  Cl. 
1,  42.  See  the  classic  argument  of  William  Pinckney  in  Moore,  Int. 
Arb.,  Ill,  3180.  The  following  decisions  in  prize  made  by  the  United 
States  Supreme  Court  during  the  Civil  War  were  modified  or  reversed 
by  the  British-American  Claims  Commission  appointed  under  the 


NOTE.  631 

Treaty  of  Washington  (the  reference  in  parentheses  is  to  Moore,  Int. 
Art).):  The  Hiawatha,  2  Black,  635  (IV,  3902);  The  Circassian,  2 
Wallace,  135  (IV,  3911);  The  Springbok,  5  Wallace,  1  (IV,  3928); 
Sir  William  Peel,  5  Wallace,  517  (IV,  3935);  The  Volant,  5  Wallace, 
179  (IV,  3950);  The  Science,  5  Wallace,  178  (IV,  3950).  For  further 
discussion  of  prize  courts  and  prize  law,  see  Earl  of  Halsbury,  Laws 
of  England,  "Prize  Law  and  Jurisdiction,"  XXIII,  275;  Allin,  "English 
and  German  Prize  Courts  and  Prize  Laws,"  Minnesota  Law  Review, 
II,  22;  Huberich  and  King,  "Development  of  German  Prize  Law," 
Columbia  Law  Review,  XVIII,  503;  Sir  Erie  Richards,  "The  British 
Prize  Courts  and  the  War,"  British  Year  Book  of  International  Law, 
1920-21,  11;  Roscoe,  "Prize  Court  Procedure,"  Ib.  1921-22,  90;  Baty, 
"Prize  Droits,"  Law  Quarterly  Review,  XXXII,  38;  Viscount  Tiverton, 
Principles  and  Practice  of  Prize  Law;  J.  A.  Hall,  The  Law  of  Naval 
Warfare,  ch.  xi ;  Pyke,  The  Law  of  Contraband  of  War,  214 ;  Cyclopedia 
of  Law  and  Procedure,  XL,  372;  Cobbett,  Cases  and  Opinions,  II,  188; 
Bonfils  (Fauchille),  sec.  1422;  Hyde,  II,  786;  Moore,  Digest,  VII,  ch. 

XXV. 


CHAPTER  XVI. 

UNNEUTRAL  SERVICE. 

THE  IMMANUEL. 

HIGH  COUET  OF  ADMIRALTY  OF  ENGLAND.    1799. 
2  C.  Robinson,  186. 

This  was  the  case  of  an  asserted  Hamburgh  ship,  taken  14th 
August  1799  on  a  voyage  from  Hamburg  to  St.  Domingo,  having 
in  her  voyage  touched  at  Bordeaux,  where  she  sold  part  of  the 
goods  brought  from  Hamburg,  and  took  a  quantity  of  iron 
stores  and  other  articles  for  St.  Domingo.  A  question  was 
first  raised  as  to  the  property  of  the  ship  and  cargo;  and  2dly, 
supposing  it  to  be  neutral  property,  Whether  a  trade  from 
the  mother  country  of  France  to  St.  Domingo,  a  French  colony, 
was  not  an  illegal  trade,  and  such  as  would  render  the  property 
of  neutrals  engaged  in  it  liable  to  be  considered  as  the  property 
of  enemies,  and  subject  to  confiscation  ?  .  .  . 

SIR  WM.  SCOTT  [LORD  STOWELL]     .    .    . 

Upon  the  mere  quastion  of  property,  as  it  respects  all  the 
goods  as  well  as  the  ship,  I  see  no  reason  to  entertain  a  legal 
doubt.  Considering  them  as  neutral  property,  I  shall  proceed  to 
the  principal  question  in  the  case,  viz.  Whether  neutral  prop- 
erty engaged  in  a  direct  traffic  between  the  enemy  and  his  col- 
onies, is  to  be  considered  by  this  Court  as  liable  to  confiscation  ? 
And  first  with  respect  to  the  goods. 

Upon  the  breaking  out  of  a  war,  it  is  the  right  of  neutrals  to 
carry  on  their  accustomed  trade,  with  an  exception  of  the  par- 
ticular cases  of  a  trade  to  blockaded  places,  or  in  contraband 
articles  (in  both  which  cases  their  property  is  liable  to  be  con- 
demned), and  of  their  ships  being  liable  to  visitation  and 
search;  in  which  case  however  they  are  entitled  to  freight  and 
expences.  I  do  not  mean  to  say  that  in  the  accidents  of  a  war 
the  property  of  neutrals  may  not  be  variously  entangled  and 

632 


THE  IMMANUEL.  633 

endangered;  in  the  nature  of  human  connections  it  is  hardly 
possible  that  inconveniences  of  this  kind  should  be  altogether 
avoided.  Some  neutrals  will  be  unjustly  engaged  in  covering 
the  goods  of  the  enemy,  and  others  will  be  unjustly  suspected 
of  doing  it;  these  inconveniences  are  more  than  fully  balanced 
by  the  enlargements  of  their  commerce;  the  trade  of  the  bel- 
ligerents is  usually  interrupted  in  a  great  degree,  and  falls  in 
the  same  degree  into  the  lap  of  neutrals.  But  without  reference 
to  accidents  of  the  one  kind  or  other,  the  general  rule  is,  that 
the  neutral  has  a  right  to  carry  on,  in  time  of  war,  his  accus- 
tomed trade  to  the  utmost  extent  of  which  that  accustomed  trade 
is  capable.  Very  different  is  the  case  of  a  trade  which  the 
neutral  has  never  possessed,  which  he  holds  by  no  title  of  use 
and  habit  in  times  of  peace,  and  which,  in  fact,  can  obtain  in 
war  by  no  other  title,  than  by  the  success  of  the  one  belligerent 
against  the  other,  and  at  the  expence  of  that  very  belligerent 
under  whose  success  he  sets  up  his  title;  and  such  I  take  to  be 
the  colonial  trade,  generally  speaking. 

What  is  the  colonial  trade  generally  speaking?  It  is  a  trade 
generally  shut  up  to  the  exclusive  use  of  the  mother  country, 
to  which  the  colony  belongs,  and  this  to  a  double  use : — that,  of 
supplying  a  market  for  the  consumption  of  native  commodities, 
and  the  other  of  furnishing  to  the  mother  country  the  peculiar 
commodities  of  the  colonial  regions;  to  these  two  purposes  of 
the  mother  country,  the  general  policy  respecting  colonies  be- 
longing to  the  states  of  Europe,  has  restricted  them.  With 
respect  to  other  countries,  generally  speaking,  the  colony  has  no 
existence;  it  is  possible  that  indirectly  and  remotely  such  col- 
onies may  affect  the  commerce  of  other  countries.  The  manu- 
factures of  Germany  may  find  their  way  into  Jamaica  or 
Guadaloupe,  and  the  sugar  of  Jamaica  or  Guadaloupe  into  the 
interior  parts  of  Germany,  but  as  to  any  direct  communication 
or  advantage  resulting  therefrom,  Guadaloupe  and  Jamaica  are" 
no  more  to  Germany  than  if  they  were  settlements  in  the  moun- 
tains of  the  moon;  to  commercial  purposes  they  are  not  in  the 
same  planet.  .  .  . 

Upon  the  interruption  of  a  war,  What  are  the  rights  of  bellig- 
erents and  neutrals  respectively  regarding  such  places?  It  is 
an  indubitable  right  of  the  belligerent  to  possess  himself  of  such 
places,  as  of  any  other  possession  of  his  enemy.  This  is  his 
common  right,  but  he  has  the  certain  means  of  carrying  such 
a  right  into  effect,  if  he  has  a  decided  superiority  at  sea :  Such 


634  UNNEUTRAL  SERVICE. 

colonies  are  dependent  for  their  existence,  as  colonies,  on  foreign 
supplies;  if  they  cannot  be  supplied  and  defended  they  must 
fall  to  the  belligerent  of  course — and  if  the  belligerent  chooses 
to  apply  his  means  to  such  an  object,  what  right  has  a  third 
party,  perfectly  neutral,  to  step  in  and  prevent  the  execution? 
No  existing  interest  of  his  is  affected  by  it;  he  can  have  no 
right  to  apply  to  his  own  use  the  beneficial  consequence  of 
the  mere  act  of  the  belligerent;  and  to  say,  "True  it  is,  you 
have,  by  force  of  arms  forced  such  places  out  of  the  exclusive 
possession  of  the  enemy,  but  I  will  share  the  benefit  of  the  con- 
quest, and  by  sharing  its  benefits  prevent  its  progress.  You 
have  in  effect,  and  by  lawful  means,  turned  the  enemy  out  of 
the  possession  which  he  had  exclusively  maintained  against  the 
whole  world,  and  with  whom  we  had  never  presumed  to  inter- 
fere; but  we  will  interpose  to  prevent  his  absolute  surrender, 
by  the  means  of  that  very  opening,  which  the  prevalence  of  your 
arms  alone  has  affected;  supplies  shall  be  sent  and  their  prod- 
ucts shall  be  exported;  you  have  lawfully  destroyed  his  monop- 
oly, but  you  shall  not  be  permitted  to  possess  it  yourself;  we 
insist  to  share  the  fruits  of  your  victories,  and  your  blood  and 
treasure  have  been  expended,  not  for  your  own  interest,  but  for 
the  common  benefit  of  others." 

Upon  these  grounds,  it  cannot  be  contended  to  be  a  right 
of  neutrals,  to  intrude  into  a  commerce  which  had  been  uni- 
formly shut  against  them,  and  which  is  now  forced  open  merely 
by  the  pressure  of  war;  for  when  the  enemy,  under  an  entire 
inability  to  supply  his  colonies  and  to  export  their  products, 
affects  to  open  them  to  neutrals,  it  is  not  his  will  but  his  neces- 
sity that  changes  his  system;  that  change  is  the  direct  and 
unavoidable  consequence  of  the  compulsion  of  war,  it  is  a  meas- 
ure not  of  French  councils,  but  of  British  force. 

Upon  these  and  other  grounds,  which  I  shall  not  at  present 
enumerate,  an  instruction  issued  at  an  early  period  for  the  pur- 
pose of  preventing  the  communication  of  neutrals  with  the 
colonies  of  the  enemy,  intended,  I  presume,  to  be  carried  into 
effect  on  the  same  footing,  on  which  the  prohibition  had  been 
legally  enforced  in  the  war  of  1756;  a  period  when  Mr.  Justice 
Blackstone  observes,  the  decisions  on  the  law  of  nations  pro- 
ceeding from  the  Court  of  Appeals,  were  known  and  revered  by 
every  state  in  Europe. 

Upon  further  inquiry  it  turned  out  that  one  favoured  nation, 
the  Americans,  had  in  times  of  peace  been  permitted,  by  spe- 


NOTE.  635 

cial  convention,  to  exercise  a  certain  very  limited  commerce 
with  those  colonies  of  the  French,  and  it  consisted  with  justice 
that  that  case  should  be  specially  provided  for;  but  no  justice 
required  that  the  provision  should  extend  beyond  the  necessities 
of  that  case ;  whatever  goes  beyond,  is  not  given  to  the  demands 
of  strict  justice,  but  is  matter  of  relaxation  and  concession. 
.  .  .  Upon  the  whole  view  of  the  case  as  it  concerns  the  goods 
shipped  at  Bourdeaux,  I  am  of  opinion  that  they  are  liable  to 
confiscation.  .  .  . 

The  only  remaining  question  respects  the  ship;  it  belongs  to 
the  same  proprietors,  and  if  the  goods  could  be  considered  as 
properly  contraband,  would  on  that  account  be  liable  to  confisca- 
tion, for  in  the  case  of  clear  contraband  this  is  the  clear  rule :  I 
incline  to  apply  a  more  favourable  one  in  the  present  case.  It 
is  a  case  in  which  a  neutral  might  more  easily  misapprehend  the 
extent  of  his  own  rights,  it  is  a  case  of  less  simplicity,  and  in 
which  he  acted  without  the  notice  of  former  decisions  upon  the 
subject.  The  ship  came  from  Hamburg  in  the  commencement  of 
the  voyage,  she  was  not  picked  up  for  this  particular  occasion, 
but  was  intended  to  be  employed  in  her  owner's  general  com- 
merce. Attending  to  these  considerations,  I  shall  go  no  further 
than  to  pronounce  for  a  forfeiture  of  freight  and  expences,  with 
a  restitution  of  the  vessel. 

Cargo,  taken  in  at  Bordeaux,  condemned;  ship  restored, 
without  freight. 

NOTE. — The  principle  upon  which  the  Rule  of  1756  is  founded  was 
applied  by  the  Dutch  as  early  as  1604.  Being  then  at  war  with  Spain, 
they  captured  a  Venetian  ship  carrying  a  Spanish  license  to  trade 
with  Spanish  colonies  south  of  the  equator.  As  this  trade  was  a 
Spanish  monopoly  the  acceptance  of  a  license  to  engage  in  it  was 
held  to  amount  to  such  an  alliance  with  Spain  as  to  warrant  the 
condemnation  of  the  ship,  Marsden,  Law  and  Custom  of  the  Sea,  I, 
345.  While  the  Rule  of  1756  was  enforced  by  British  prize  courts, 
it  was  stoutly  opposed  on  the  Continent  and  in  America.  For  the 
attitude  of  the -American  Government  see  the  letter  of  April  12,  1805, 
from  Madison,  Secretary  of  State,  to  Monroe,  Minister  to  England,  in 
Moore,  Digest,  VII,  1105.  Madison  also  made  it  the  subject  of  a 
pamphlet  entitled  An  Examination  of  the  British  Doctrine  which  sub- 
jects to  Capture  a  Neutral  Trade  not  Open  in  Time  of  Peace.  Madi- 
son failed  to  perceive  both  the  sound  logic  upon  which  the  Rule  is 
based  and  the  advantage  which  it  might  sometime  be  to  America  to 
enforce  it.  Chancellor  Kent  was  more  far  seeing.  He  said: 

It  is  very  possible  that,  if  the  United  States  should  here- 
after attain  that  elevation  of  maritime  power  and  influence 


636  UNNEUTRAL  SERVICE. 

which  their  rapid  growth  and  great  resources  seem  to  indi- 
cate, and  which  shall  prove  sufficient  to  render  it  expedient  for 
her  maritime  enemy  (if  such  an  enemy  shall  ever  exist)  to 
open  all  his  domestic  trade  to  enterprising  neutrals,  we  might 
be  induced  to  feel  more  sensibly  than  we  have  hitherto  done 
the  weight  of  the  foreign  jurists  in  favor  of  the  policy  and 
equity  of  the  Rule. 

Kent,  Commentaries,  I,  84. 

Justice  Story  thought  that  the  Rule  was  well-founded  (Story,  Life 
and  Letters  of  Joseph  Story,  I,  287),  and  in  this  opinion  he  was  fol- 
lowed by  Halleck  (II,  340).  More  recently  the  most  eminent  Ameri- 
can student  of  sea  power  has  said: 

In  past  days,  while  reading  pretty  extensively  the  argu- 
ments pro  and  con  as  to  the  rights  and  duties  of  neutrals  in 
war,  it  has  been  impressed  upon  me  that  the  much-abused 
Rule  of  1756  stood  for  a  principle  which  was  not  only  strictly 
just,  but  wisely  expedient 

Mahan,  Some  Neglected  Aspects  of  War,  191. 

The  more  liberal  policy  pursued  by  the  chief  colonial  powers  in 
allowing  aliens  to  participate  in  the  trade  with  their  dependencies 
and  particularly  Great  Britain's  acceptance  of  the  Declaration  of 
Paris  of  1856,  whereby  enemy  goods  under  a  neutral  flag  unless  con- 
traband, were  made  exempt  from  capture,  seemed  to  put  the  whole 
question  at  rest  so  far  as  colonial  trade  is  concerned.  In  the  Russo- 
Japanese  War,  however,  the  principle  was  applied  to  the  case  of  the 
American  steamer  Mortara,  which  was  condemned  by  Japan  for  en- 
gaging in  the  Russian  fur  trade  from  which  it  was  excluded  in  time 
of  peace,  Takahashi,  633.  The  question  was  revived  by  the  proposal 
of  the  German  delegates  to  the  London  Naval  Conference  of  1908 
that  neutral  vessels  engaged  in  a  trade  closed  to  them  in  time  of 
peace  should  be  regarded  as  enemy  vessels.  This  was  strongly  op- 
posed. Ultimately  the  Conference  voted  (Art.  57)  that  while  the 
character  of  a  vessel  should  be  determined  by  the  flag  which  it  was 
entitled  to  fly,  yet  "the  case  in  which  a  neutral  vessel  is  engaged  in 
a  trade  which  is  reserved  in  time  of  peace  remains  outside  the  scope 
of  this  rule  and  is  in  no  way  affected  by  it."  This  leaves  the  ques- 
tion open. 

Historically  the  Rule  of  1756  is  of  most  interest  because  of  its 
relation  to  the  rise  of  the  doctrine  of  continuous  voyage.  Practically 
the  Rule  is  now  chiefly  important  in  connection  with  the  coasting 
trade  from  which  foreign  vessels  are  almost  everywhere  excluded. 
If  a  country  finding  its  coast  besieged  by  a  hostile  fleet  should  open 
its '  coasting  trade  to  neutrals,  there  can  be  little  doubt  that  neutral 
vessels  engaging  therein  would  be  seized  and  condemned  on  the 
ground  that  by  such  participation  they  identified  themselves  with  the 
enemy.  This  is  all  the  more  likely  in  view  of  the  vast  extent  of 
the  navigation  which  several  powers  treat  as  part  of  their  coasting 
trade.  While  not  employing  the  term  cabotage,  France  excludes 


THE  OROZEMBO.  637 

foreign  ships  from  the  service  between  France  and  Algiers,  and  by  a 
system  of  preferential  tariffs  accomplishes  the  same  result  as  to 
navigation  between  France  and  Tunis.  Transportation  between 
American  ports  on  the  Atlantic  and  Pacific  coasts  has  always  been 
reserved  for  American  ships,  and  after  the  war  with  Spai'n  navigation 
between  the  main  land  and  Porto  Rico  and  Hawaii  was  declared  to 
be  coasting-trade  and  placed  under  the  same  rule.  The  Merchant 
Marine  Act  of  1920  made  provision  for  placing  the  trade  between  the 
United  States  and  the  Philippines  upon  the  same  basis.  Since  1900 
Russia  has  declared  all  navigation  between  Vladivostock  and  any 
Russian  port  to  be  coasting-trade  reserved  exclusively  for  Russian 
vessels.  These  examples  show  that  there  is  still  abundant  reason  for 
maintaining  the  Rule  of  1756. 

For  further  discussion  of  the  subject,  see  Morison,  Decisions  of  the 
Court  of  Session  (Scotland),  11944-11948;  The  America  (1759),  Bur- 
rell,  210;  Berens  v.  Rucker  (1761),  1  W.  Bl.  313;  The  Yong  Vrow 
Adriana  (1764),  Burrell,  178;  Brymer  v.  Atkins  (1789),  1  H.  Bl. 
165;  The  Emanuel  (1799),  1  C.  Robinson,  296;  The  Princessa  (1799), 
2  Ib.  49;  The  Jonge  Thomas  (1801),  3  Ib.  233n.;  The  Anna  Catharina 
(1802),  4  Ib.  107;  The  Rendsborg  (1802),  4  Ib.  121;  Bonfils  (Fauchille), 
sec.  1534;  Cobbett,  Cases  and  Opinions,  II,  460;  Moore,  Digest,  VII, 
383;  Wheaton,  Reports  of  the  United  States  Supreme  Court,  I,  507. 
The  best  recent  discussion  of  the  Rule  of  1756  is  by  A.  Pearce  Higgins 
in  his  War  and  the  Private  Citizen,  ch  v. 


THE  OROZEMBO. 

HIGH  COURT  OF  ADMIRALTY  OF  ENGLAND.    1807. 
6  C.  Robinson,  430. 

This  was  a  case  .  .  .  of  an  American  vessel  that  had  been 
ostensibly  chartered  by  a  merchant  at  Lisbon,  "to  proceed  in 
ballast  to  Macao,  and  there  to  take  a  cargo  to  America,"  but 
which  had  been  afterwards,  by  his  directions,  fitted  up  for  the 
reception  of  three  military  officers  of  distinction,  and  two  per- 
sons in  civil  departments  in  the  government  of  Batavia,  who 
had  come  from  Holland  to  take  their  passage  to  Batavia,  under 
the  appointment  of  the  government  of  Holland.  There  were 
also  on  board  a  lady,  and  some  persons  in  the  capacity  of 
servants,  making  in  the  whole  seventeen  passengers.  .  .  . 

Sir  W.  SCOTT  [LORD  STOWELL]. — This  is  the  case  of  an  ad- 
mitted American  vessel ;  but  the  title  to  restitution  is  impugned, 
on  the  ground  of  its  having  been  employed,  at  the  time  of  the 


638  UNNEUTRAL  SERVICE. 

capture,  in  the  service  of  the  enemy,  in  transporting  military 
persons  first  to  Macao,  and  ultimately  to  Batavia.  That  a  vessel 
hired  by  the  enemy  for  the  conveyance  of  military  persons,  is  to 
be  considered  as  a  transport  subject  to  condemnation,  has  been 
in  a  recent  case  held  by  this  court,  and  on  other  occasions. 
What  is  the  number  of  military  persons  that  shall  constitute 
such  a  case,  it  may  be  difficult  to  define.  In  the  former  case 
there  were  many,  in  the  present  there  are  much  fewer  in  num- 
ber, but  I  accede  to  what  has  been  observed  in  argument,  that 
number  alone  is  an  insignificant  circumstance  in  the  considera- 
tions, on  which  the  principle  of  law  on  this  subject  is  built ;  since 
fewer  persons  of  high  quality  and  character  may  be  of  more 
importance,  than  a  much  greater  number  of  persons  of  lower 
condition.  To  send  out  one  veteran  general  of  France  to  take 
the  command  of  the  forces  of  Batavia,  might  be  a  much  more 
noxious  act  than  the  conveyance  of  a  whole  regiment.  The 
consequences  of  such  assistance  are  greater;  and  therefore  it  is 
what  the  belligerent  has  a  stronger  right  to  prevent  and  punish. 
In  this  instance  the  military  persons  are  three,  and  there  are,  be- 
sides, two  other  persons,  who  were  going  to  be  employed  in  civil 
capacities  in  the  government  of  Batavia.  Whether  the  principle 
would  apply  to  them  alone,  I  do  not  feel  it  necessary  to  deter- 
mine. I  am  not  aware  of  any  case  in  which  that  question  has 
been  agitated;  but  it  appears  to  me  on  principle,  to  be  but 
reasonable  that,  whenever  it  is  of  sufficient  importance  to  the 
enemy,  that  such  persons  should  be  sent  out  on  the  public  serv- 
ice, at  the  public  expence,  it  should  afford  equal  ground  of 
forfeiture  against  the  vessel,  that  may  be  let  out  for  a  purpose 
so  intimately  connected  with  the  hostile  operations. 

It  has  been  argued,  that  the  master  was  ignorant  of  the  char- 
acter of  the  service  on  which  he  was  engaged,  and  that,  in  order 
to  support  the  penalty,  it  would  be  necessary  that  there  should 
be  some  proof  of  delinquency  in  him,  or  his  owner.  But  I  con- 
ceive, that  is  not  necessary ;  it  will  be  sufficient  if  there  is  an  in- 
jury arising  to  the  belligerent  from  the  employment  in  which 
the  vessel  is  found.  In  the  case  of  the  Swedish  vessel  [The 
Carolina  (1802),  4  C.  Robinson,  256]  there  was  no  mens  rea 
in  the  owner,  or  in  any  other  person  acting  under  his  au- 
thority. The  master  was  an  involuntary  agent,  acting  under 
compulsion,  put  upon  him  by  the  officers  of  the  French  gov- 
ernment, and,  so  far  as  intention  alone  is  considered,  per- 
fectly innocent.  In  the  same  manner  in  cases  of  bona  fide  igno- 


THE  OROZEMBO.  639 

ranee,  there  may  be  no  actual  delinquency,  but  if  the  service  is 
injurious,  that  will  be  suffic-ient  to  give  the  belligerent  a  right  to 
prevent  the  thing  from  being  done,  or  at  least  repeated,  by  en- 
forcing the  penalty  of  confiscation.  If  imposition  has  been 
practised,  it  operates  as  force;  and  if  redress  in  the  way  of  in- 
demnification is  to  be  sought  against  any  person,  it  must  be 
against  those,  who  have,  by  means  either  of  compulsion  or  deceit, 
exposed  the  property  to  danger.  If,  therefore,  it  was  the  most 
innocent  case  on  the  part  of  the  master,  if  there  was  nothing 
whatever  to  affect  him  with  privity,  the  whole  amount  of  this 
argument  would  be,  that  he  must  seek  his  redress  against  the 
freighter;  otherwise  such  opportunities  of  conveyance  would  be 
constantly  used,  and  it  would  be  almost  impossible,  in  the  greater 
number  of  cases,  to  prove  the  knowledge  and  privity  of  the  im- 
mediate offender. 

It  has  been  argued  throughout,  as  if  the  ignorance  of  the 
master  alone  would  be  sufficient  to  exempt  the  property  of  the 
owner  from  confiscation.  But  may  there  not  be  other  persons, 
besides  the  master,  whose  knowledge  and  privity  would  carry 
with  it  the  same  consequences?  Suppose  the  owner  himself  had 
knowledge  of  the  engagement,  would  not  that  produce  the  mens 
rea,  if  such  a  thing  is  necessary?  or  if  those  who  had  been  em- 
ployed to  act  for  the  owner,  had  thought  fit  to  engage  the  ship 
in  a  service  of  this  nature,  keeping  the  master  in  profound  ig- 
norance, would  it  not  be  just  as  effectual,  if  the  mens  rea  is  nec- 
essary, that  it  should  reside  in  those  persons,  as  in  the  owner. 
The  observations  which  I  shall  have  occasion  to  make  on  the  re- 
maining parts  of  this  case  will,  perhaps,  appear  to  justify  such 
a  supposition,  either  that  the  owner  himself,  or  those  who  acted 
for  him  in  Lisbon  or  in  Holland,  were  conusant  of  the  nature 
of  the  whole  transaction.  But  I  will  first  state  distinctly,  that 
the  principle  on  which  I  determine  this  case  is,  that  the  carrying 
military  persons  to  the  colony  of  an  enemy,  who  are  there  to  take 
on  them  the  exercise  of  their  military  functions,  will  lead  to  con- 
demnation, and  that  the  court  is  not  to  scan  with  minute  arith- 
metic the  number  of  persons  that  are  so  carried.  If  it  has  ap- 
peared to  be  of  sufficient  importance  to  the  government  of  the 
enemy  to  send  them,  it  must  be  enough  to  put  the  adverse  gov- 
ernment on  the  exercise  of  their  right  of  prevention;  and  the 
ignorance  of  the  master  can  afford  no  ground  of  exculpation  in 
favour  of  the  owner,  who  must  seek  his  remedy  in  cases  of  de- 
ception, as  well  as  of  force,  against  those  who  have  imposed 


640  UNNEUTRAL  SERVICE. 

upon  him.  ...  I  have  no  hesitation  in  pronouncing  that  this 
vessel  is  liable  to  be  considered  as  a  transport,  let  out  in  the 
service  of  the  government  of  Holland,  and  that  it  is  as  such 
subject  to  condemnation. 


THE  ATALANTA. 

HIGH  COURT  OF  ADMIRALTY  OF  ENGLAND.     1808. 
6  C.  Robinson,  440. 

This  was  a  case  of  a  Bremen  ship  and  cargo,  captured  on  a 
voyage  from  Batavia  to  Bremen,  on  the  14th  of  July,  1807,  hav- 
ing come  last  from  the  Isle  of  France ;  where  a  packet,  contain- 
ing dispatches  from  the  government  of  the  Isle  of  France  to  the 
minister  of  marine,  at  Paris,  was  taken  on  board  by  the  master 
and  one  of  the  supercargoes,  and  was  afterwards  found  con- 
cealed, in  the  possession  of  the  second  supercargo,  under  circum- 
stances detailed  in  the  judgment.  .  .  . 

Sir  W.  SCOTT  [LORD  STOWELL]  ....  I  feel  myself  bound  to 
pronounce,  that  there  were  papers  received  on  board,  as  public 
dispatches,  and  knowingly  by  those  who  are  the  agents  of  the 
proprietors;  .  .  .  and  that  the  fact  of  a  fraudulent  con- 
cealment and  suppression  is  most  satisfactorily  demonstrated. 

The  question  then  is,  what  are  the  legal  consequences  attach- 
ing on  such  a  criminal  act?  for  that  it  is  criminal  and  most 
noxious  is  scarcely  denied.  What  might  be  the  consequences  of 
a  simple  transmission  of  dispatches,  I  am  not  called  upon  by  the 
necessities  of  the  present  case  to  decide,  because  I  have  already 
pronounced  this  to  be  a  fraudulent  case.  That  the  simple  carry- 
ing of  dispatches,  between  the  colonies  and  the  mother  country 
of  the  enemy,  is  a  service  highly  injurious  to  the  other  bellig- 
erent, is  most  obvious.  In  the  present  state  of  the  world,  in  the 
hostilities  of  European  powers,  it  is  an  object  of  great  impor- 
tance to  preserve  the  connection  between  the  mother  country 
and  her  colonies;  and  to  interrupt  that  connection,  on  the  part 
of  the  other  belligerent,  is  one  of  the  most  energetic  operations 
of  war.  The  importance  of  keeping  up  that  connection,  for  the 
concentration  of  troops,  and  for  various  military  purposes,  is 
manifest ;  and  I  may  add,  for  the  supply  of  civil  assistance  also, 


THE  ATALANTA.  641 

and  support,  because  the  infliction  of  civil  distress,  for  the  pur- 
pose of  compelling  a  surrender,  forms  no  inconsiderable  part  of 
the  operations  of  war.  It  is  not  to  be  argued,  therefore,  that  the 
importance  of  these  dispatches  might  relate  only  to  the  civil 
wants  of  the  colony,  and  that  it  is  necessary  to  shew  a  military 
tendency;  because  the  object  of  compelling  a  surrender  being  a 
measure  of  war.  whatever  is  conducive  to  that  event  must  also 
be  considered,  in  the  contemplation  of  law,  as  an  object  of  hos- 
tility, although  not  produced  by  operations  strictly  military. 
How  is  this  intercourse-with  the  mother  country  kept  up,  in  time 
of  peace?  by  ships  of  war,  or  by  packets  in  the  service  of  the 
state.  If  a  war  intervenes,  and  the  other  belligerent  prevails  to 
interrupt  that  communication,  any  person  stepping  in  to  lend 
himself  to  effect  the  same  purpose,  under  the  privilege  of  an  os- 
tensible neutral  character,  does,  in  fact,  place  himself  in  the 
service  of  the  enemy-state,  and  is  justly  to  be  considered  in  that 
character.  Nor  let  it  be  supposed,  that  it  is  an  act  of  light  and 
casual  importance.  The  consequence  of  such  a  service  is  in- 
definite, infinitely  beyond  the  effect  of  any  contraband  that  can 
be  conveyed.  The  carrying  of  two  or  three  cargoes  of  stores  is 
necessarily  an  assistance  of  a  limited  nature;  but  in  the  trans- 
mission of  dispatches  may  be  conveyed  the  entire  plan  of  a 
campaign,  that  may  defeat  all  the  projects  of  the  other  bellig- 
erent in  that  quarter  of  the  world.  It  is  true,  as  it  has  been  said, 
that  one  ball  might  take  off  a  Charles  the  XHth,  and  might 
produce  the  most  disastrous  effects  in  a  campaign ;  but  that  is  a 
consequence  so  remote  and  accidental,  that  in  the  contemplation 
of  human  events,  it  is  a  sort  of  evanescent  quantity  of  which  no 
account  is  taken ;  and  the  practice  has  been  accordingly,  that  it 
is  in  considerable  quantities  only  that  the  offence  of  contraband 
is  contemplated.  The  case  of  dispatches  is  very  different;  it  is 
impossible  to  limit  a  letter  to  so  small  a  size,  as  not  to  be  capable 
of  producing  the  most  important  consequences  in  the  operations 
of  the  enemy:  it  is  a  service  therefore  which,  in  whatever  de- 
gree it  exists,  can  only  be  considered  in  one  character,  as  an  act 
of  the  most  noxious  and  hostile  nature.  ...  I  have  the  direct 
authority  of  the  superior  court  for  pronouncing,  that  the  carry- 
ing of  dispatches  of  the  enemy,  brings  on  the  confiscation  of  the 
vehicle  so  employed. 

It  is  said,  that  this  is  more  than  is  done  even  in  cases  of  con- 
traband ;  and  it  is  true,  with  respect  to  the  very  lenient  practice 
43     of  this  country,  which  in  this  matter  recedes  very  much  from 


642  UNNEUTBAL  SERVICE. 

the  correct  principle  of  the  law  of  nations,  which  authorizes  the 
penalty  of  confiscation.  .  .  .  This  country,  which,  however 
much  its  practice  may  be  misrepresented  by  foreign  writers, 
and  sometimes  by  our  own,  has  always  administered  the  law  of 
nations  with  lenity,  adopts  a  more  indulgent  rule,  inflicting  on 
the  ship  only  a  forfeiture  of  freight  in  ordinary  cases  of  contra- 
band. But  the  offence  of  carrying  despatches  is,  it  has  been 
observed,  greater.  To  talk  of  the  confiscation  of  the  noxious 
article,  the  despatches,  which  constitutes  the  penalty  in  contra- 
band, would  be  ridiculous.  There  would  be  no  freight  depend- 
ent on  it,  and  therefore  the  same  precise  penalty  cannot,  in  the 
nature  of  things,  be  applied.  It  becomes  absolutely  necessary,  as 
well  as  just,  to  resort  to  some  other  measure  of  confiscation, 
which  can  be  no  other  than  that  of  the  vehicle. 

Then  comes  the  other  question,  whether  the  penalty  is  not  also 
to  be  extended  further,  to  the  cargo,  being  the  property  of  the 
same  proprietors;  not  merely  ob  continentiam  delicti,  but  like- 
wise because  the  representatives  of  the  owners  of  the  cargo,  are 
directly  involved  in  the  knowledge  and  conduct  of  this  guilty 
transaction  ?  On  the  circumstances  of  the  present  case  I  have  to 
observe,  that  the  offence  is  as  much  the  act  of  those  who  are  the 
constituted  agents  of  the  cargo,  as  of  the  master,  who  is  the 
agent  of  the  ship.  The  general  rule  of  law  is,  that  where  a  party 
has  been  guilty  of  an  interposition  in  the  war,  and  is  taken  in 
delict o,  he  is  not  entitled  to  the  aid  of  the  court,  to  obtain  the 
restitution  of  any  part  of  his  property  involved  in  the  same 
transaction.  It  is  said,  that  the  term  "interposition  in  the  war" 
is  a  very  general  term,  and  not  to  be  loosely  applied.  I  am  of 
opinion,  that  this  is  an  aggravated  case  of  active  interposition 
in  the  service  of  the  enemy,  concerted  and  continued  in  fraud 
and  marked  with  every  species  of  malignant  conduct.  In  such 
a  case  I  feel  myself  bound,  not  only  by  the  general  rule,  ob  con- 
tinentiam delicti,  but  by  the  direct  participation  of  guilt  in  the 
agents  of  the  cargo.  Their  own  immediate  conduct  not  only 
excludes  all  favourable  distinction,  but  makes  them  pre-emi- 
nently the  object  of  just  punishment.  The  conclusion  therefore 
is,  that  I  must  pronounce  the  ship  and  cargo  subject  to  con- 
demnation. ... 

NOTE. — A  neutral  vessel  carrying  prisoners  without  the  consent  of 
both  belligerents  is  treated  as  a  commissioned  cartel  ship  trading 
with  or  serving  one  of  the  belligerents  in  violation  of  the  duty  which 
it  owes  to  the  other,  The  Brig  Betsey  (1913),  49  Ct.  Cl.  125.  The 


NOTE.  643 

fact  that  the  unneutral  service  was  rendered  in  ignorance  of  the  ex- 
istence of  war  does  not  excuse  an  offender  who  is  brought  before  a 
prize  court  of  his  own  country,  The  Zambesi  (New  South  Wales, 
1914),  1  Br.  &  Col.  P.  C.  358.  If  a  vessel  which  is  engaged  in  an  un- 
lawful voyage  is  captured  while  rendering  unneutral  service  a  plea 
of  duress  or  compulsion  will  not  be  accepted,  The  Catherina  Maria 
(1809),  Edwards,  337,  The  Seyerstadt  (1813),  1  Dodson,  241;  but 
a  vessel  engaged  in  a  lawful  voyage  which  is  compelled  by  force 
majeure  to  render  unneutral  service  is  innocent  of  wrong,  The 
Pontoporos  (Singapore^  1915),  1  Br.  &  Col.  P.  C.  371;  The  Chrysopolis 
(Italy,  1917),  Gazzetta  Ufflciale,  March  10,  1917.  A  vessel  carrying 
supplies  to  enemy- submarines  and  hydroplanes  and  giving  them  in- 
formation which  enables  them  to  attack  the  captor's  fleets  and  coast 
cities,  La  Bella  Scutarina  (Italy,  1916),  Gazzetta  Ufflciale,  May  15, 
1916;  or  carrying  Austrian  and  German  reservists  from  Barcelona  to 
Genoa,  The  F6derico  (France,  1914),  Decisions  du  Conseil  des  Prises, 
162;  or  a  vessel  manned  by  Germans  but  carrying  no  flag  or  papers 
to  indicate  its  nationality,  The  Rosita  (France,  1914),  Ib.  171;  or 
a  vessel  carrying  Turkish  officers  with  arms  and  money  concealed 
in  the  hold,  flying  the  Greek  flag  but  with  no  papers  to  establish  its 
identity,  The  Olympia  (France,  1914),  Ib.  173,  is  subject  to  condemna- 
tion for  unneutral  service. 

For  further  discussion  of  unneutral  service  see  The  Emanuel 
(1799),  1  C.  Robinson,  296;  The  Rosalie  and  Betty  (1800),  2 
Ib.  343;  The  Carolina  (1802),  4  Ib.  256;  The  Friendship  (1807), 
6  Ib.  420;  The  Rapid  (1810),  Edwards,  228;  The  Nigretia  (Japan, 
1905),  Takahashi,  639;  The  Industrie  (Japan,  1905).  Ib.  732;  The 
Quang-nam  (Japan,  1906),  Ib.  735;  The  Manouba  (1913),  Wilson, 
The  Hague  Arbitration  Cases,  326;  The  Thor  (St.  Lucia,  1914),  1 
Br.  &  Col.  P.  C.  229;  The  Hanametal  (Hong-Kong,  1914),  1  Ib.  347; 
The  Proton  (Egypt,  1916),  2  Ib.  107;  The  Svithiod  (1920),  L.  R. 
[1920]  A.  C.  718.  See  also  Int.  Law  Sit.  1901,  86;  Ib.  1902,  7;  Int.  Law 
Topics,  1905,  171;  Ib.  1906,  88;  Borchard,  sec.  358;  Cobbett,  Cases  and 
Opinions,  II,  447;  Hyde,  II,  635;  Moore,  Digest,  VII,  752. 


CHAPTER  XVH. 

BLOCKADE. 

SECTION  1.    GENERAL  RULES. 
THE  BETSEY. 

HIGH  COUBT  OF  ADMIRALTY  OF  ENGLAND.    1798. 
1  C.  Robinson,  93. 

This  was  a  case  of  a  ship  and  cargo,  taken  by  the  English,  at 
the  capture  of  Guadaloupe,  April  the  13th,  1794;  and  retaken, 
together  with  that  island,  by  the  French,  in  June  following. 
.  .  .  The  first  seisure  was  defended  on  a  suggestion,  that  The 
Betsey  had  broken  the  blockade  at  Guadaloupe. 

SIR  W.  SCOTT  [LORD  STOWELL].  ...  On  the  question  of 
blockade  three  things  must  be  proved :  1st,  The  existence  of  an 
actual  blockade;  2dly,  The  knowledge  of  the  party;  and,  3dly. 
Some  act  of  violation,  either  by  going  in,  or  by  coming  out  with 
a  cargo  laden  after  the  commencement  of  blockade.  The  time 
of  shipment  would  on  this  last  point  be  very  material,  for  al- 
though it  might  be  hard  to  refuse  a  neutral,  liberty  to  retire 
with  a  cargo  already  laden,  and  by  that  act  already  become 
neutral  property;  yet,  after  the  commencement  of  a  blockade, 
a  neutral  cannot,  I  conceive,  be  allowed  to  interpose  in  any  way 
to  assist  the  exportation  of  the  property  of  the  enemy.  After 
the  commencement  of  the  blockade,  a  neutral  is  no  longer  at 
liberty  to  make  any  purchase  in  that  port. 

It  is  necessary,  however,  that  the  evidence  of  a  blockade  should 
be  clear  and  decisive:  but  in  this  case  there  is  only  an  affidavit 
of  one  of  the  captors,  and  the  account  which  is  there  given  is, 
"that  on  the  arrival  of  the  British  forces  in  the  West  Indies,  a 
proclamation  issued,  inviting  the  inhabitants  of  Martinique,  St. 
Lucie,  and  Guadaloupe,  to  put  themselves  under  the  protection 
of  the  English;  that  on  a  refusal,  hostile  operations  were  com- 

644 


THE  BETSEY.  645 

menced  against  them  all : "  but  it  cannot  be  meant  that  they  be- 
gan immediately  against  all  at  once ;  for  it  is  notorious  that  they 
were  directed  against  them  separately  and  in  succession.  It  is 
further  stated,  "that  in  January,  1794,  (but  without  any  more 
precise  date,)  Guadeloupe  was  summoned,  and  was  then  put  into 
a  state  of  complete  investment  and  blockade." 

The  word  complete  is  a  word  of  great  energy;  and  we  might 
expect  from  it  to  find,  that  a  number  of  vessels  were  stationed 
round  the  entrance  of  the  port  to  cut  off  all  communication :  but 
from  the  protest  I  perceive  that  the  captors  entertained  but  a 
very  loose  notion  of  the  true  nature  of  a  blockade ;  for  it  is  there 
stated,  "that  on  the  1st  of  January,  after  a  general  proclama- 
tion to  the  French  islands,  they  were  put  into  a  state  of  complete 
blockade."  It  is  a  term,  therefore,  which  was  applied  to  all 
those  islands  at  the  same  time,  under  the  first  proclamation. 

The  Lords  of  Appeal  have  determined  that  such  a  proclama- 
tion was  not  in  itself  sufficient  to  constitute  a  legal  blockade :  it 
is  clear,  indeed,  that  it  could  not  in  reason  be  sufficient  to  pro- 
duce the  effect  which  the  captors  erroneously  ascribed  to  it :  but 
from  the  misapplication  of  these  phrases  in  one  instance  I  learn, 
that  we  must  not  give  too  much  weight  to  the  use  of  them  on 
this  occasion;  and  from  the  generality  of  these  expressions,  I 
think  we  must  infer  that  there  was  not  that  actual  blockade, 
which  the  law  is  now  distinctly  understood  to  require. 

But  it  is  attempted  to  raise  other  inferences  on  this  point, 
from  the  manner  in  which  the  master  speaks  of  the  difficulty  and 
danger  of  entering;  and  from  the  declaration  of  the  Municipal- 
ity of  Guadaloupe,  which  states  "the  island  to  have  been  in  a 
state  of  siege."  It  is  evident  that  the  American  master  speaks 
only  of  the  difficulty  of  avoiding  the  English  cruisers  generally 
in  those  seas ;  and  as  to  the  other  phrase,  it  is  a  term  of  the  new 
jargon  of  France,  which  is  sometimes  applied  to  domestic  dis- 
turbances ;  and  certainly  is  not  so  intelligible  as  to  justify  me  in 
concluding,  that  the  island  was  in  that  state  of  investment  from 
a  foreign  enemy,  which  we  require  to  constitute  blockade:  I 
cannot,  therefore,  lay  it  down,  that  a  blockade  did  exist  till  the 
operations  of  the  forces  were  actually  directed  against  Guada- 
loupe in  April. 

It  would  be  necessary  for  me,  however,  to  go  much  farther, 
and  to  say  that  I  am  satisfied  also  that  the  parties  had  knowledge 
of  it:  but  this  is  expressly  denied  by  the  master.  He  went  in 
without  obstruction.  Mr.  Incledon's  statement  of  his  belief  of 


646  BLOCKADE. 

the  notoriety  of  the  blockade  is  not  such  evidence  as  will  alone 
be  sufficient  to  convince  me  of  it.  With  respect  to  the  shipment 
of  the  cargo,  it  does  not  appear  exactly  under  what  circum- 
stances or  what  time  it  was  taken  in:  I  shall  therefore  dismiss 
this  part  of  the  case.  .  .  . 


THE  NEPTUNUS. 

HIGH  COUBT  OF  ADMIRALTY  OF  ENGLAND.    1799. 
2  C.  Robinson,  110. 

This  was  a  case  of  a  vessel  sailing  on  a  voyage  from  Dantzick 
to  Havre,  26th  October  1798,  and  taken  in  attempting  to  enter 
that  port  on  26th  November.  .  .  . 

Sir  WM.  SCOTT  [LORD  STOWELL]  .  This  is  a  case  of  a  ship  and 
cargo  seized  in  the  act  of  entering  the  port  of  Havre  in  pursu- 
ance of  the  original  intention  under  which  the  voyage  began. 
The  notification  of  the  blockade  of  that  port  was  made  on  the 
23d  February  1798,  and  this  transaction  happened  in  November 
in  that  year;  the  effect  of  a  notification  to  any  foreign  govern- 
ment would  clearly  be  to  include  all  the  individuals  of  that 
nation ;  it  would  be  the  most  nugatory  thing  in  the  world,  if  in- 
dividuals were  allowed  to  plead  their  ignorance  of  it;  it  is  the 
duty  of  foreign  governments  to  communicate  the  information  to 
their  subjects,  whose  interests  they  are  bound  to  protect.  I  shall 
hold  therefore  that  a  neutral  master  can  never  be  heard  to  aver 
against  a  notification  of  blockade,  that  he  is  ignorant  of  it.  If 
he  is  really  ignorant  of  it,  it  may  be  a  subject  of  representation 
to  his  own  government,  and  may  raise  a  claim  of  compensation 
from  them,  but  it  can  be  no  plea  in  the  Court  of  a  belligerent. 
In  the  case  of  a  blockade  de  facto  only,  it  may  be  otherwise,  but 
this  is  the  case  of  a  blockade  by  notification ;  another  distinction 
between  a  notified  blockade  and  a  blockade  existing  de  facto 
only,  is  that  in  the  former,  the  act  of  sailing  to  a  blockaded  place 
is  sufficient  to  constitute  the  offence.  It  is  to  be  presumed  that 
the  notification  will  be  formally  revoked,  and  that  due  notice 
v>  ill  be  given  of  it ;  till  that  is  done,  the  port  is  to  be  considered 
as  closed  up,  and  from  the  moment  of  quitting  port  to  sail  on 
such  a  destination,  the  offence  of  violating  the  blockade  is  com- 


THE  NEPTUNUS.  647 

i 

plete,  and  the  property  engaged  in  it  subject  to  confiscation:  it 
may  be  different  in  a  blockade  existing  de  facto  only;  there  no 
presumption  arises  as  to  the  continuance,  and  the  ignorance  of 
the  party  may  be  admitted  as  an  excuse,  for  sailing  on  a  doubt- 
ful and  provisional  destination.  But  this  is  a  case  of  a  vessel 
from  Dantzick  after  the  notification,  and  the  master  cannot  be 
heard  to  aver  his  ignorance  of  it.  He  sails : — till  the  moment  of 
meeting  Admiral  Duncan's  fleet,  I  should  have  no  hesitation  in 
saying,  that,  if  he  had  been  taken,  he  would  have  been  taken  in 
delicto,  and  have  subjected  his  vessel  to  confiscation ;  but  he 
meets  Admiral  Duncan's  fleet,  and  is  examined,  and  liberated 
by  the  Captain  of  an  English  frigate  belonging  to  that  fleet,  who 
told  him  that  he  might  proceed  on  his  destination,  and  who,  on 
being  asked,  Whether  Havre  was  under  a  blockade?  said  "It 
was  not  blockaded,"  and  wished  him  a  good  voyage.  The  ques- 
tion is,  In  what  light  he  is  to  be  considered  after  receiving  this 
information?  That  it  was  bona  fide  given  cannot  be  doubted, 
as  they  would  otherwise  have  seized  the  vessel;  the  fleet  must 
have  been  ignorant  of  the  fact;  and  I  have  to  lament  that  they 
were  so :  When  a  blockade  is  laid  on,  it  ought  by  some  kind  of 
communication  to  be  made  known  not  only  to  foreign  govern- 
ments, but  to  the  King's  subjects,  and  particularly  to  the  King's 
cruizers;  not  only  to  those  stationed  at  the  blockaded  ports,  but 
to  others,  and  especially  considerable  fleets,  that  are  stationed 
in  itinere,  to  such  a  port  from  the  different  trading  countries 
that  may  be  supposed  to  have  an  intercourse  with  it.  Perhaps 
it  would  have  been  safer  in  the  English  Captain  to  have  an- 
swered, that  he  could  not  say  anything  of  the  situation  at  Havre ; 
but  the  fact  is,  (and  it  has  not  been  contradicted,)  that  the 
British  officer  told  the  master  "that  Havre  was  not  blockaded." 
Under  these  circumstances  I  think,  that  after  this  information 
he  is  not  taken  in  delicto.  I  do  not  mean  to  say  that  the  fleet 
could  give  the  man  any  authority  to  go  to  a  blockaded  port;  it 
is  not  set  up  as  an  authority,  but  as  intelligence  affording  a  rea- 
sonable ground  of  belief ;  as  it  could  not  be  supposed,  that  such 
a  fleet  as  that  was,  would  be  ignorant  of  the  fact. 

From  that  time  I  consider  that  a  state  of  innocence  com- 
mences; the  man  was  not  only  in  ignorance,  but  had  received 
positive  information  that  Havre  was  not  blockaded.  Under 
these  circumstances,  I  think  it  would  be  a  little  too  hard  to  press 
the  former  offence  against  him;  it  would  be  to  press  a  pretty 
strong  principle  rather  too  strongly ;  I  think  I  cannot  look  retro- 


648  BLOCKADE. 

speetively  to  the  state  in  which  he  stood  before  the  meeting  with 
the  British  fleet,  and  therefore  I  shall  direct  this  Vessel  and 
Cargo  to  be  restored. 


THE  FRANCISKA. 

JUDICIAL  COMMITTEE  OF  THE  PRIVY  COUNCIL  OF  GREAT  BRITAIN.     1855. 
10  Moore,  Privy  Council,  37. 

[The  Franciska,  a  neutral  Danish  vessel,  sailed  in  March, 
1854,  from  Tarragona  in  Spain,  with  a  cargo  belonging  to  Span- 
ish subjects,  bound  for  Elsinore,  Denmark,  for  orders,  and 
thence  for  some  safe  port  on  the  Baltic.  She  called  at  Elsinore 
on  May  13,  where  she  cleared  "for  the  Baltic"  generally,  with- 
out naming  any  port.  Off  the  entrance  of  the  Gulf  of  Riga  on 
May  22,  she  was  captured  by  a  British  cruiser  for  a  breach  of 
the  blockade  of  Riga  and  sent  to  England  for  adjudication.  She 
was  condemned  by  the  judge  of  the  High  Court  of  Admiralty, 
Rt.  Hon.  Dr.  Lushington,  on  the  ground  that  the  blockade  was 
notorious  at  Elsinore  on  the  day  that  the  Franciska  called  there. 
The  claimant,  the  Danish  owner,  appealed.] 

The  Right  Hon.  T.  PEMBERTON  LEIGH   [LORD  KINGSDOWN]. 

In  this  case  the  ship  was  labouring  under  the  utmost  sus- 
picion. She  had  no  Latin  pass,  which  the  Danish  Government 
provides  for  a  ship  of  that  country;  she  had  no  paper  whatever 
on  board  showing  the  port  for  which  she  was  bound.  .  .  . 
There  was  every  reason,  therefore,  to  suspect,  if  Riga  was  at 
this  time  in  a  state  of  blockade,  that  the  master  had  notice  of 
it,  and  intended  to  break  it.  ...  Whatever  may  be  the  de- 
merits of  the  ship,  she  cannot  be  condemned  unless  at  the  time 
when  she  committed  the  alleged  offence  the  port  for  which  she 
was  sailing  was  legally  in  a  state  of  blockade,  and  was  known 
to  be  so  by  the  master  or  owner.  .  .  .  It  is  established  that 
on  the  15th  or  17th  of  April  .  .  .  the  Admiral  did  establish 
...  an  effective  blockade  of  the  ports  of  Libau,  Windau,  and 
the  Gulf  of  Riga.  .  .  .  But  while  the  Admiral  was  taking 
these  measures  in  the  Baltic,  the  English  and  French  Govern- 
ments were  taking  measures  at  home  of  which  he  was  ignorant, 


THE  FRANCISKA.  649 

and  which  it  is  contended  seriously  affect  the  validity  of  the 
blockade  in  point  of  law.  .  .  .  [Here  follows  a  recital  of 
the  ordinances  of  the  British,  French,  and  Russian  Govern- 
ments.] 

As  regards  export,  therefore,  from  the  Baltic  ports,  by  the 
effect  of  these  several  Ordinances  all  restriction  up  to  the  15th 
of  May,  on  the  conveyance  of  cargoes  in  Russian  vessels  to  Brit- 
ish and  French  ports,  was  removed;  and  though  British  and 
French  vessels  would,  by  the  general  Law  of  Nations,  be  liable 
to  confiscation  for  breach  of  blockade,  by  sailing  from  blockaded 
ports  with  cargoes  taken  on  board  after  notice  of  the  blockade, 
and  the  permission  to  export  is,  by  the  Orders,  in  terms,  con- 
fined to  Russian  vessels,  it  seems  improbable  that  the  Allied 
Powers  could  intend  to  deprive  their  subjects  of  the  indulgence 
granted  to  them  by  the  Russian  Government,  or  to  subject  their 
property  to  confiscation  for  doing  what  the  enemy  was  per- 
mitted to  do  with  impunity. 

In  effect,  therefore,  neutrals  only  would  be  excluded  from 
that  commerce  which  belligerents  might  safely  carry  on;  and 
the  question  is,  whether  by  the  Law  of  Nations  such  exclusion 
be  justifiable;  and,  if  not,  in  what  manner  and  to  what  extent 
neutral  powers  are  entitled  to  avail  themselves  of  the  objection. 

That  such  exclusion  is  not  justifiable  is  laid  down  in  the  clear- 
est and  most  forcible  language  in  the  following  passage  of  the 
judgment  now  under  review: — "The  argument  stands  thus: 
By  the  Law  of  Nations  a  belligerent  shall  not  concede  to  an- 
other belligerent,  or  take  for  himself,  the  right  of  carrying  on 
commercial  intercourse  prohibited  to  neutral  nations;  and. 
therefore,  no  blockade  can  be  legitimate  that  admits  to  either 
belligerent  a  freedom  of  commerce  denied  to  the  subjects  of 
states  not  engaged  in  the  war.  The  foundation  of  the  principle 
is  clear,  and  rooted  in  justice;  for  interference  with  neutral 
commerce  at  all  is  only  justified  by  the  right  which  war  confers 
of  molesting  the  enemy,  all  relations  of  trade  being  by  war  itself 
suspended.  To  this  principle  I  entirely  accede ;  and  I  should 
regret  to  think  if  any  authority  could  be  cited  from  the  deci- 
sions of  any  British  Court  administering  the  Law  of  Nations, 
which  could  be  with  truth  asserted  to  maintain  a  contrary  doc- 
trine." 

The  learned  Judge,  after  discussing  the  question  how  far 
licenses  to  enter  blockaded  ports  would  invalidate  a  blockade, 
and  pointing  out  the  important  distinctions  between  blockades 


650  BLOCKADE. 

according  to  the  ordinary  Law  of  Nations,  and  the  blockades  in- 
troduced during  the  last  war  by  the  Berlin  and  Milan  Decrees 
on  the  one  hand,  and  the  British  Orders  in  Council  on  the  other, 
and  between  special  licenses  granted  for  a  particular  occasion 
and  licenses  granted  indiscriminately,  proceeds,  ' '  I  think  that  if 
the  relaxation  of  a  blockade  be,  as  to  belligerents,  entire,  the 
blockade  cannot  lawfully  subsist ;  if  it  be  partial,  and  such  as  to 
exceed  special  occasion,  that,  to  the  extent  of  such  partial  re- 
laxation, neutrals  are  entitled  to  a  similar  benefit."  And  he 
concludes  his  able  discussion  of  this  part  of  the  case,  in  these 
words:  "With  respect  to  the  present  question,  I,  therefore, 
have  come  to  the  conclusion,  that  as  Russian  vessels  might  have 
left  the  ports  of  Courland  up  to  the  15th  of  May,  the  subjects  of 
neutral  States  ought  to  be  entitled  to  the  same  advantages,  and 
if  there  be  any  vessel  so  circumstanced  I  should  hold  her  entitled 
to  restitution.  I  think  the  remedy  should  be  commensurate  with 
the  grievance."  The  learned  Judge  holds  that  such  relaxation 
does  not  affect  the  general  validity  of  the  blockade. 

In  order  to  judge  how  far  this  conclusion  can  be  maintained, 
it  is  necessary  to  consider  upon  what  principles  the  right  of  a 
belligerent  to  exclude  neutrals  from  a  blockaded  port  rests. 
That  right  is  founded,  not  on  any  general  unlimited  right  to 
cripple  the  enemy's  commerce  with  neutrals  by  all  means  effect- 
ual for  that  purpose,  for  it  is  admitted  on  all  hands  that  a  neu- 
tral has  a  right  to  carry  on  with  each  of  two  belligerents  during 
war  all  the  trade  that  was  open  to  him  in  times  of  peace,  subject 
to  the  exceptions  of  trade  in  contraband  goods  and  trade  with 
blockaded  ports.  Both  these  exceptions  seem  founded  on  the 
same  reason,  namely,  that  a  neutral  has  no  right  to  interfere 
with  the  military  operations  of  a  belligerent  either  by  supplying 
his  enemy  with  materials  of  war,  or  by  holding  intercourse  with 
a  place  which  he  has  besieged  or  blockaded. 

Grotius  expresses  himself  upon  the  subject  in  these  terms : — 
"Si  juris  mei  executionem  rerum  subvectio  impedierit,  idque 
scire  potuerit,  qui  advexit,  ut  si  oppidum  obsessum  tenebam,  si 
portus  clausos,  et  jam  deditio  aut  pax  expectabatur,  tenebitur 
ille  mihi  de  damno  culpd  daio."  De  Jure  Belli  ac  Pads,  lib.  iii. 
c.  i.  §  v. 

Bynkershoek  's  commentary  on  this  passage  is  to  the  effect  that 
it  is  unlawful  to  carry  anything,  whether  contraband  or  not,  to 
a  place  thus  circumstanced,  since  those  who  are  within  may  be 
compelled  to  surrender,  not  merely  by  the  direct  application  of 


THE  FRANCISKA.  651 

force,  but  also  by  the  want  of  provisions  and  other  necessaries. 
"Sola  obsidio  in  causa  est,  cur  nihil  obessis  subvehere  liceat,  sive 
contrabandum  sit,  sive  non  sit,  nam  obsessi  non  tantum  vi  cogun- 
tur  ad  deditionem,  sed  et  fame,  et  alia  aliarum  rerum  penuria." 
Quae.  Jur.  Pub.  lib.  i.  c.  11. 

Wheaton  in  his  "Elements  of  International  Law,"  vol.  ii.  pp. 
228-230,  justly  observes  that  this  passage  in  Bynkershoek  goes 
too  far,  and  that  a  blockade  is  not  confined  to  the  case  where 
there  is  a  siege  or  blockade  with  a  view  to  the  capture  of  a  place 
or  the  expectation  of  peace.  But  these  passages  seem  to  point 
to  the  reason  on  which  this  interference  with  the  ordinary  rights 
of  neutrals  was  originally  justified. 

Vattel  lays  down  the  same  doctrine: — "Qitand  je  tiens  une 
place  assiegee,  ou  seulement  bloquee,  je  suis  en  droit  d'empecher 
que  personne  n'y  entre,  et  de  trailer  en  ennemi  quiconque  entre- 
prend  d'y  entrer  sans  ma  permission,  mi  d'y  porter  quoi  que  ce 
soit:  car  il  s' oppose  a  mon  entreprise,  il  peut  contribuer  a  la 
faire  echouer,  et  par  Id  me  faire  tomber  dans  tous  les  maux 
d'une  querre  malheureuse."  B.  iii.  c.  vii.  s.  1,  17. 

These  passages  refer  only  to  ingress  and  the  importation  of 
goods,  but  it  is  clear  that  the  operations  of  the  siege  or  blockade 
may  be  interrupted  by  any  communication  of  the  blockaded  or 
besieged  place  with  foreigners;  and  Lord  Stowell,  when  he 
defines  a  blockade,  always  speaks  of  it  as  the  exclusion  of  the 
blockaded  place  from  all  commerce,  whether  by  egress  or  ingress. 
In  The  "Frederick  Molke"  (1  Rob.  87),  he  says:  "What  is 
the  object  of  a  blockade  ?  not  merely  to  prevent  an  importation 
of  supplies ;  but  to  prevent  export  as  well  as  import ;  and  to  cut 
off  all  communication  of  commerce  with  the  blockaded  place." 
In  The  "Betsey"  (1  Rob.  93)— "After  the  commencement  of  a 
blockade  a  neutral  cannot,  I  conceive,  be  allowed  to  interpose  in 
any  way  to  assist  the  exportation  of  the  property  of  the  enemy." 
In  The  "Vrouw  Judith"  (1  Rob.  151)— "A  blockade  is  a  sort 
of  circumvallation  round  a  place,  by  which  all  foreign  connexion 
and  correspondence  is,  as  far  as  human  force  can  effect  it,  to 
be  entirely  cut  off.  It  is  intended  to  suspend  the  entire  com- 
merce of  that  place ;  and  a  neutral  is  no  more  at  liberty  to  assist 
the  traffic  of  exportation  than  of  importation."  In  The 
"Rolla"  (6  Rob.  372),  "What  is  a  blockade  but  a  uniform  uni- 
versal exclusion  of  all  vessels  not  privileged  by  law?"  In  The 
"Success"  (1  Dods.  134) — "The  measure  which  has  been  re- 
sorted to,  being  in  the  nature  of  a  blockade,  must  operate  to  the 


652  BLOCKADE. 

entire  exclusion  of  British  as  well  as  neutral  ships ;  for  it  would 
be  a  gross  violation  of  neutral  rights,  to  prohibit  their  trade, 
and  to  permit  the  subjects  of  this  country  to  carry  on  an  un- 
restricted commerce  at  the  very  same  ports  from  which  neutrals 
are  excluded. ' '  • 

It  is  contended  that  the  objection  of  a  neutral  to  the  validity 
of  a  blockade,  on  the  ground  of  its  relaxation  by  a  belligerent  in 
his  own  favour,  is  removed  if  a  Court  of  Admiralty  allows  to 
the  neutral  the  same  indulgence  which  the  belligerent  has  re- 
served to  himself  or  granted  to  his  enemy.  But  their  Lordships 
have  great  difficulty  in  assenting  to  this  proposition.  In  the  first 
place,  the  particular  relaxation,  which  may  be  of  the  greatest 
value  to  the  belligerents,  may  be  of  little  or  no  value  to  the 
neutral.  In  the  instance  now  before  the  Court  it  may  have  been 
of  the  utmost  importance  to  Great  Britain  that  there  should  be 
brought  into  her  ports  cargoes  which,  at  the  institution  of  the 
blockade,  were  in  Riga ;  and  it  may  have  been  for  her  advantage, 
with  that  view,  to  relax  the  blockade.  But  a  relaxation  of  the 
blockade  to  that  extent,  and  a  permission  to  neutrals  to  bring 
such  cargoes  to  British  ports  may  have  been  of  little  or  no  value 
to  neutrals. 

The  Counsel  on  both  sides  at  their  Lordships'  bar  understood 
that  the  learned  Judge  in  this  case  intended  thus  to  limit  the 
rights  of  neutrals,  and  to  place  neutral  vessels  only  in  the  same 
situation  as  Russians,  under  the  Order  in  Council.  Their  Lord- 
ships would  be  inclined  to  give  a  more  liberal  interpretation  to 
the  language  of  the  judgment ;  yet  if  this  be  done,  the  allowance 
of  a  general  freedom  of  commerce,  by.  way  of  export,  to  all  ves- 
sels and  to  all  places  from  a  blockaded  port,  seems  hardly  con- 
sistent with  the  existence  of  any  blockade  at  all. 

Again,  it  is  not  easy  to  answer  the  objections  a  neutral  might 
make,  that  the  condition  of  things  which  alone  authorizes  any 
interference  with  his  commerce  does  not  exist,  namely,  the  neces- 
sity of  interdicting  all  communications  by  way  of  commerce  with 
the  place  in  question ;  that  a  belligerent,  if  he  inflicts  upon  neu- 
trals the  inconvenience  of  exclusion  from  commerce  with  such 
place,  must  submit  to  the  same  inconvenience  himself;  and  that 
if  he  is  at  liberty  to  select  particular  points  in  which  it  suits 
his  purpose  that  the  blockade  should  be  violated  with  immunity, 
each  neutral,  in  order  to  be  placed  on  equal  terms  with  the  bel- 
ligerent, should  be  at  liberty  to  make  such  selection  for  himself. 

But  the  ambiguity  in  which  all  these  questions  are  left  by  the 


THE  FRANCISKA.  653 

Order  in  Council  of  the  15th  of  April;  the  doubt  whether  the 
liberty  accorded  to  enemies'  vessels  extends  to  neutrals,  and,  if 
so,  whether  such  liberty  is  subject  to  the  same  restrictions,  or  to 
any  other  and  what  restrictions,  affords,  in  the  opinion  of  their 
Lordships,  another  strong  argument  against  the  legality  of  the 
blockade  in  this  case.  If  a  partial,  modified  blockade  is  to  be 
enforced  against  neutrals,  justice  seems  to  require  that  the  mod- 
ifications intended  to  be  introduced  should  be  notified  to  neutral 
States,  and  they  should  be  fully  apprized  what  acts  their  sub- 
jects may  or  may  not  do.  They  cannot  reasonably  be  exposed 
to  the  hardship  of  either  abstaining  from  all  commerce  with  a 
place  in  such  a  state  of  uncertain  blockade,  or  of  having  their 
ships  seized  and  sent  to  the  country  of  the  belligerent,  in  order 
to  learn  there,  from  the  decision  of  its  Court  of  Admiralty, 
whether  the  conduct  they  have  pursued  is,  or  is  not,  protected 
by  an  equitable  interpretation  of  an  instrument  in  which  they 
are  not  expressly  included. 

If  these  views  of  the  law  be  correct,  this  ship  cannot  be  con- 
sidered to  have  had  notice  of  any  blockade  of  Riga  at  the  time 
when  she  sailed  for  that  port;  for,  in  truth,  no  legal  blockade 
was  then  in  existence,  and  it  would  be  hard  to  require  a  neutral 
to  speculate  on  the  probability,  however  great,  of  a  legal  block- 
ade de  facto  being  established  at  a  future  time,  when  he  is  not 
permitted  to  speculate  on  the  chance  of  its  discontinuance  after 
he  has  once  had  notice  of  its  existence.  .  .  .  • 

Supposing,  however,  the  blockade  is  this  case  to  be  open  to  no 
objections  in  point  of  law  during  the  interval  between  the  15th 
of  April  and  the  15th  of  May,  it  remains  to  be  inquired  whether 
the  notice  which  this  ship  received  of  its  existence  was  of  such  a 
character  as  to  subject  her  to  the  penalty  of  confiscation  for  dis- 
regarding it.  Notice  has  been  imputed  to  the  claimant  in  the 
Court  below  from  the  alleged  notoriety  of  the  blockade  on  the 
14th  of  May,  at  Elsinore,  where  the  ship  touched,  and  at  Copen- 
hagen, where  the  owner  resided. 

It  is  contended  by  the  appellant  that  in  case  of  ingress  of  a 
port  subject  to  a  blockade  only  de  facto  of  which  there  has  not 
been  any  official  notification,  guilty  knowledge  cannot  be  in- 
ferred in  an  individual  from  general  notoriety,  and  that  a  ship 
is  always  entitled  under  such  circumstances  to  warning  from 
the  blockading  squadron  before  she  is  exposed  to  seizure. 

To  this  proposition  their  Lordships  are  unable  to  accede.  If 
a  blockade  de  facto  be  good  in  law  without  notification,  and  a 


654  BLOCKADE. 

wilful  violation  of  a  known  legal  blockade  be  punishable  with 
confiscation — propositions  which  are  free  from  doubt. — the  mode 
in  which  the  knowledge  has  been  acquired  by  the  offender,  if 
it  be  clearly  proved  to  exist,  cannot  be  of  importance.  Nor  does 
there  seem  for  this  purpose  to  be  much  difference  between  in- 
gress, in  which  a  warning  is  said  to  be  indispensable,  and  egress, 
in  which  it  is  admitted  to  be  unnecessary. 

The  fact  of  knowledge  is  capable  of  much  easier  proof  in  the 
one  case  than  in  the  other;  but  when  once  the  fact  is  clearly 
proved,  the  consequences  must  be  the  same.  The  reasoning  of 
the  learned  Judge  of  the  Court  below  in  this  case,  and  the  lan- 
guage of  Lord  Stowell  in  The  "Adelaide"  reported  in  the  note 
to  The  "Neptunus,  (2  Rob.  Ill)  and  The  "Hurtige  Hane," 
(3  Rob.  324,)  'are  conclusive  upon  this  point. 

But  while  their  Lordships  are  quite  prepared  to  hold  that  the 
existence  and  extent  of  a  blockade  may  be  so  well  and  so  gener- 
ally known,  that  knowledge  of  it  in  an  individual  may  be  pre- 
sumed without  distinct  proof  of  personal  knowledge,  and  that 
knowledge  so  acquired  may  supply  the  place  of  a  direct  com- 
munication from  the  blockading  squadron,  yet  the  fact,  with 
notice  of  which  the  individual  is  so  to  be  fixed,  must  be  one 
which  admits  of  no  reasonable  doubt.  "Any  communication 
which  brings  it  to  the  knowledge  of  the  party,"  to  use  the  lan- 
guage of  Lord  StoweU  in  The  "Holla",  (6  Rob.  367),  "in  a 
way  which  could  leave  no  doubt  in  his  mind  as  to  the  authentic- 
ity of  the  information." 

Again,  the  notice  to  be  inferred  from  general  notoriety,  must 
be  of  such  a  character  that  if  conveyed  by  a  distinct  intimation 
from  a  competent  authority  it  would  have  been  binding;  the 
notice  cannot  be  more  effectual  because  its  existence  is  pre- 
sumed, than  it  would  be  if  it  were  directly  established  in  evi- 
dence. The  notice  to  be  inferred  from  the  acts  of  a  belligerent, 
which  is  to  supply  the  place  of  a  public  notification,  or  of  a  par- 
ticular warning,  must  be  such  as,  if  given  in  the  form  of  a  public 
notification,  or  of  a  particular  warning,  would  have  been  legal 
and  effectual. 

For  this  purpose  the  notice  of  the  blockade  must  not  be  more 
extensive  than  the  blockade  itself.  A  belligerent  cannot  be  al- 
lowed to  proclaim  that  he  has  instituted  a  blockade  of  several 
ports  of  the  enemy,  when  in  truth  he  has  only  blockaded  one; 
such  a  course  would  introduce  all  the  evils  of  what  is  termed  a 
paper  blockade,  and  would  be  attended  with  the  grossest  injus- 


THE  FRANCISKA.  655 

tice  to  the  commerce  of  neutrals.  Accordingly  a  neutral  is  at 
liberty  to  disregard  such  a  notice,  and  is  not  liable  to  the  pen- 
alties attending  a  breach  of  blockade,  for  afterwards  attempting 
to  enter  the  port  which  really  is  blockaded. 

This  was  distinctly  laid  down  by  Lord  Stowell  in  the  case  of 
The  "Henrich  and  Maria",  (1  Rob.,  148),  where  an  officer  of 
the  blockading  squadron  had  informed  a  neutral  that  all  the 
Dutch  ports  were  in  a  state  of  blockade,  whereas  the  blockade 
was  confined  to  Amsterdam.  The  ship  was  afterwards  captured 
for  an  alleged  attempt  to  enter  Amsterdam,  and  Lord  Stowell, 
in  decreeing  restitution,  observed:  "The  notice  is,  I  think,  in 
point  of  authority,  illegal ;  at  the  time  when  it  was  given,  there 
was  no  blockade  which  extended  to  all  the  Dutch  ports.  A  dec- 
laration of  blockade  is  a  high  act  of  sovereignty;  and  a  Com- 
mander of  a  King's  ship  is  not  to  extend  it.  The  notice  is,  also, 
I  think,  as  illegal  in  effect  as  in  authority :  it  cannot  be  said  that 
such  a  notice,  though  bad  for  other  ports,  is  good  for  Amster- 
dam. It  takes  from  the  neutral  all  power  of  election  as  to  what 
other  port  of  Holland  he  should  go,  when  he  found  the  port  of 
his  destination  under  blockade.  A  commander  of  a  ship  must 
not  reduce  a  neutral  to  this  kind  of  distress;  and  I  am  of  the 
opinion,  that  if  the  neutral  had  contravened  the  notice,  he  would 
not  have  been  subject  to  condemnation." 

The  authority  of  this  case  is  fully  recognized  by  Dr.  Lushing- 
ton  in  the  present  case,  who  observes  that  such  an  administra- 
tion of  law  in  protecting  the  party  misled,  was  most  just. 

Applying  these  principles  to  the  evidence  before  them,  their 
Lordships  can  have  no  doubt  that  the  master  and  owner  in  this 
case  are  to  be  fixed  with  notice  of  all  that  was  publicly  known  at 
Copenhagen  on  the  14th  of  May,  on  the  subject  of  the  blockade ; 
that  it  was  known  there  that  merchant-vessels  had  been  turned 
back  from  ports  on  the  coast  of  Courland,  and  that  a  general 
impression  prevailed  that  vessels  seeking  to  enter  Russian  ports 
ran  great  risk  of  seizure ;  and  that  the  owner  in  this  case  shared 
that  impression,  and  that  to  this  cause  are  to  be  attributed  the 
want  of  proper  ships'  papers,  which  has  been  already  alluded  to, 
and  the  absence,  on  the  further  proof,  of  any  affidavit  on  the 
part  of  the  owner  denying  knowledge  of  the  blockade.  .  .  . 

[Their  Lordships  then  examine  the  evidence  as  to  what  was 
known  at  Copenhagen  as  to  the  blockade  of  the  Russian  coast, 
and  find  that  the  only  notice  whLh  the  master  could  have  re- 
ceived there  at  that  time  would  have  been  that  the  entire  Rus- 


656  BLOCKADE. 

sian  cost  was  blockaded, — a  notice  which  was  contrary  to  the 
facts  and  which  if  received  from  a  British  officer  he  would 
have  been  justified  in  disregarding.] 

Their  Lordships  .  .  .  must  advise  a  restitution  of  the  ship 
(or  rather  the  proceeds,  for  it  appears  to  have  been  sold)  and  of 
the  freight,  but  certainly  without  any  costs  or  damages  to  the 
claimant.  There  will  be  simple  restitution,  without  costs  or  ex- 
penses to  either  party. 


THE  PETERHOFF. 

SUPREME  COUBT  OF  THE  UNITED  STATES.    1866. 
5  Wallace,  28. 

Appeal  from  the  District  Court  for  the  Southern  District  of 
New  York. 

[In  1862  the  President  proclaimed  a  blockade  of  the  "whole 
coast  from  the  Chesapeake  Bay  to  the  Rio  Grande."  About 
forty  miles  up  the  Rio  Grande,  on  the  American  side  of  the 
river,  is  the  town  of  Brownsville.  On  the  opposite  bank  in  Mex- 
ico is  the  city  of  Matamoras.  While  the  blockade  was  in  force, 
the  Peterhoff,  a  British  vessel,  sailed  from  London  for  Mata- 
moras, with  a  miscellaneous  cargo  part  of  which  was  the  prop- 
erty of  the  owner  of  the  vessel.  In  the  Caribbean  Sea  to  the 
south  of  Cuba,  she  was  captured  by  an  American  war  vessel  and 
taken  to  New  York  where  the  vessel  and  cargo  were  condemned 
for  intent  to  violate  the  blockade  by  sending  her  cargo  in  light- 
ers up  the  river  Rio  Grande  to  the  city  of  Matamoras,  from 
which  point  much  of  her  cargo  was  to  be  sent  into  Texas.] 

The  CHIEF  JUSTICE  [CHASE]  delivered  the  opinion  of  the 
court.  .  .  . 

It  was  maintained  in  argument  (1)  that  trade  with  Mata- 
moras, at  the  time  of  the  capture,  was  made  unlawful  by  the 
blockade  of  the  mouth  of  the  Rio  Grande ;  and  if  not,  then  (2) 
that  the  ulterior  destination  of  the  cargo  was  Texas  and  the 
other  States  in  rebellion,  and  that  this  ulterior  destination  was 
in  breach  of  the  blockade.  .  .  . 

In  determining  the  question  whether  this  blockade  was  in- 


THE  PETERHOFF.  657 

tended  to  include  the  mouth  of  the  Rio  Grande,  the  treaty  with 
Mexico,  9  Stat.  at  Large,  926,  in  relation  to  that  river  must  be 
considered.  It  was  stipulated  in  the  5th  article  that  the  bound- 
ary line  between  the  United  States  and  Mexico  should  commence 
in  the  Gulf,  three  leagues  from  land  opposite  the  mouth  of  the 
Rio  Grande,  and  run  northward  from  the  middle  of  the  river. 
And  in  the  7th  article  it  was  further  stipulated  that  the  naviga- 
tion of  the  river  should  be  free  and  common  to  the  citizens  of 
both  countries  without  interruption  by  either  without  the  con- 
sent of  the  other,  even  for  the  purpose  of  improving  the  navi- 
gation. 

The  mouth  of  the  Rio  Grande  was,  therefore,  for  half  its 
width,  within  Mexican  territory,  and,  for  the  purposes  of  navi- 
gation, was,  altogether,  as  much  Mexican  as  American.  It  is 
clear,  therefore,  that  nothing  short  of  an  express  declaration  by 
the  Executive  would  warrant  us  in  ascribing  to  the  government 
an  intention  to  blockade  such  a  river  in  time  of  peace  between 
the  two  Republics.  .  .  .  And  we  are  the  less  inclined  to  say 
it,  because  we  are  not  aware  of  any  instance  in  which  a  bellig- 
erent has  attempted  to  blockade  the  mouth  of  a  river  or  harbor 
occupied  on  one  side  by  neutrals,  or  in  which  such  a  blockade  has 
been  recognized  as  valid  by  any  court  administering  the  law  of 
nations.  .  .  . 

We  come  next  to  the  question  whether  an  ulterior  destination 
to  the  rebel  region,  which  we  now  assume  as  proved,  affected 
the  cargo  of  the  Peterhoff  with  liability  to  condemnation.  We 
mean  the  neutral  cargo :  reserving  for  the  present  the  question 
of  contraband.  .  .  . 

It  is  an  undoubted  general  principle,  recognized  by  this  court 
in  the  case  of  The  Bermuda,  and  in  several  other  cases,  that  an 
ulterior  destination  to  a  blockaded  port  will  infect  the  primary 
voyage  to  a  neutral  port  with  liability  for  intended  violation  of 
blockade. 

The  question  now  is  whether  the  same  consequences  will  at- 
tend an  ulterior  destination  to  a  belligerent  country  by  inland 
conveyance.  And  upon  this  question  the  authorities  seem  quite 
clear. 

During  the  blockade  of  Holland  in  1799,  goods  belonging  to 
Prussian  subjects  were  shipped  from  Edam,  near  Amsterdam, 
by  inland  navigation  to  Emden,  in  Hanover,  for  transshipment 
to  London.  Prussia  and  Hanover  were  neutral.  The  goods  were 
captured  on  the  voyage  from  Emden,  and  the  cause,  The  Stert, 


658  BLOCKADE. 

4  Robinson,  65,  came  before  the  British  Court  of  Admiralty  in 
1801.  It  was  held  that  the  blockade  did  not  affect  the  trade 
of  Holland  carried  on  with  neutrals  by  means  of  inland  naviga- 
tion. "It  was,"  said  Sir  William  Scott,  "a  mere  maritime 
blockade  effected  by  force  operating  only  at  sea."  He  admitted 
that  such  trade  would  defeat,  partially  at  least,  the  object  of 
the  blockade,  namely,  to  cripple  the  trade  of  Holland,  but  ob- 
served, "If  that  is  the  consequence,  all  that  can  be  said  is  that 
it  is  an  unavoidable  consequence.  It  must  be  imputed  to  the 
nature  of  the  thing  which  will  not  admit  of  a  remedy  of  this 
species.  The  court  cannot  on  that  ground  take  upon  itself  to 
say  that  a  legal  blockade  exists  where  no  actual  blockade  can  be 
applied.  ...  It  must  be  presumed  that  this  was  foreseen  by 
the  blockading  state,  which,  nevertheless,  thought  proper  to  im- 
pose it  to  the  extent  to  which  it  was  practicable." 

The  same  principle  governed  the  case  of  The  Ocean,  3  Robin- 
son, 297,  made  also  in  1801.  At  the  time  of  her  voyage  Amster- 
dam was  blockaded,  but  the  blockade  had  not  been  extended  to 
the  other  ports  of  Holland.  Her  cargo  consisted  partly  or 
wholly  of  goods  ordered  by  American  merchants  from  Amster- 
dam and  sent  thence  by  inland  conveyance  to  Rotterdam,  and 
there  shipped  to  America.  It  was  held  that  the  conveyance  from 
Amsterdam  to  Rotterdam,  being  inland,  was  not  affected  by  the 
blockade,  and  the  goods,  which  had  been  captured,  were  re- 
stored. 

These  were  cases  of  trade  from  a  blockaded  to  a  neutral  coun- 
try by  means  of  inland  navigation,  to  a  neutral  port  or  a  port 
not  blockaded.  The  same  principle  was  applied  to  trade  from 
a  neutral  to  a  blockaded  country  by  inland  conveyance  from 
the  neutral  port  of  primary  destination  to  the  blockaded  port  of 
ulterior  destination  in  the  case  of  the  Jonge  Pieter,  4  Robinson, 
79,  adjudged  in  1801.  Goods  belonging  to  neutrals  going  from 
London  to  Emden,  with  ulterior  destination  by  land  or  an  inte- 
rior canal  navigation  to  Amsterdam  were  held  not  liable  to  seizure 
for  violation  of  the  blockade  of  that  port.  .  .  .  These  cases 
fully  recognize  the  lawfulness  of  neutral  trade  to  or  from  a 
blockaded  country  by  inland  navigation  or  transportation. 

The  general  doctrines  of  international  law  lead  irresistibly 
to  the  same  conclusion.  We  know  of  but  two  exceptions  to  the 
rule  of  free  trade  by  neutrals  with  belligerents:  the  first  is  that 
there  must  be  no  violation  of  blockade  or  siege :  and  the  second, 
that  there  must  be  no  conveyance  of  contraband  to  either  bellig- 


NOTE.  659 

erent.  And  the  question  we  are  now  considering  is,  "Was  the 
cargo  of  the  Peterhoff  within  the  first  of  these  exceptions  ? ' '  We 
have  seen  that  Mataraoras  was  not  and  could  not  be  blockaded; 
and  it  is  manifest  that  there  was  not  and  could  not  be  any 
blockade  of  the  Texan  bank  of  the  Rio  Grande  as  against  the 
trade  of  Matamoras. 

We  must  say,  therefore,  that  trade,  between  London  and 
Matamoras,  even  with  attempt  to  supply,  from  Matamoras, 
goods  to  Texas,  violated  no  blockade,  and  cannot  be  declared 
unlawful. 

[The  remaining  portion  of  the  opinion,  dealing  with  the  ques- 
tion of  contraband,  may  be  found,  post,  677.] 

NOTE. — The  right  to  blockade  an  enemy's  ports  by  a  competent  force 
is  secured  to  every  belligerent  by  the  law  of  nations  and  neutrals  are 
bound  to  respect  it,  RTCall  v.  Marine  Insurance  Co.  (1814),  8  Cranch, 
59;  The  Prize  Cases  (1863),  2  Black,  635;  The  Admiral  (1866),  3 
Wallace,  603.  As  it  is  a  war  right  it  can  be  exercised  only  when  war 
exists,  Ford  v.  Surget  (1879),  97  U.  S.  594.  A  declaration  of  a  block- 
ade is  a  high  act  of  sovereignty  and  can  be  made  only  on  govern- 
mental authority,  The  Henrick  and  Maria  (1799),  1  C.  Robinson,  146, 
148,  but  before  the  invention  of  the  telegraph  it  was  held  that  a 
commander  on  a  distant  station  might  institute  a  blockade  without 
express  authority,  The  Rolla  (1807),  6  Ib.  364.  A  blockade  of  a 
single  port  may  be  instituted  by  a  subordinate  officer  when  it  is  a 
part  of  another  military  or  naval  operation,  The  Circassian  (1865), 
2  Wallace,  135;  The  Adula  (1900),  176  U.  S.  361. 

The  gist  of  the  offense  of  breach  of  blockade  lies,  in  Anglo-American 
prize  law,  in  the  intent  to  enter  a  blockaded  port,  The  Columbia  (1799), 
1  C.  Robinson,  154;  The  James  Cook  (1810),  Edwards,  261;  The 
Veteran  (1905),  Takahashi,  714.  Hence  a  blockade  runner  is  in  delicto 
from  the  moment  of  sailing,  The  Galen  (1901),  37  Ct.  Cl.  89,  and 
the  mere  act  of  sailing  is  illegal  and  subjects  the  vessel  to  capture, 
The  Neptunus  (1799),  2  C.  Robinson,  110;  The  Panaghia  Rhomba 
(1858),  12  Moore,  P.  C.  168;  The  Bermuda  (1866),  3  Wallace,  514; 
United  States  v.  Hallock  (1864),  154  U.  S.  537.  But  the  intent  must 
be  established  by  affirmative  evidence.  Mere  suspicion  is  not  enough, 
The  Newfoundland  (1900),  176  U.  S.  97.  For  discussions  of  evidence 
showing  intent  see  The  Sea  Witch  (1868),  6  Wallace,  242;  The  Flying 
Scud  (1868),  6  Ib.  263;  The  Adela  (1868),  6  Ib.  266;  The  Wren 
(1868),  6  Ib.  582.  But  sailing  for  a  blockaded  port  is  an  innocent 
act  unless  accompanied  by  knowledge  of  the  blockade,  Fitzsimmons 
v.  Newport  Insurance  Co.  (1808),  4  Cranch,  185,  198;  Yeaton  v. 
Fry  (1809),  5  Cranch,  335;  The  Admiral  (1866),  3  Wallace,  603. 
Whether  knowledge  is  derived  from  a  formal  proclamation,  The 
Cornelius  (1866),  3  Wallace,  214,  or  from  notification  entered  on  a 
vessel's  log  or  from  any  other  source  is  immaterial,  The  Adula  (1900), 
176  U.  S.  361.  Under  Anglo-American  practice  a  master  with  notice 


660  BLOCKADE. 

of  a  blockade  is  not  permitted  to  approach  a  blockaded  port  for  the 
purpose  of  inquiring  whether  the  blockade  has  been  raised,  The  Spes 
(1804),  5  C.  Robinson,  76;  The  Little  William  (1809),  1  Acton,  141; 
The  Josephine  (1866),  3  Wallace,  83;  The  Cheshire  (1866),  3  Wal- 
lace, 231;  but  the  French  permit  him  to  hope  that  the  blockade  will 
have  been  discontinued  by  the  time  of  his  arrival  and  hence  he  may 
approach  for  inquiry,  Bonfils  (Fauchille),  sec.  1663.  Vessels  may  ex- 
pose themselves  to  seizure  merely  by  suspicious  conduct,  as  by  hover- 
ing about  the  entrance  to  a  blockaded  port,  The  Neutralitet  (1805), 
6  C.  Robinson,  30;  The  Charlotte  Christine  (1805),  6  Ib.  101.  St. 
Paul's  admonition,  "Avoid  the  very  appearance  of  evil,"  is  a  good  rule 
for  the  conduct  of  neutral  vessels  at  sea  in  time  of  war.  But  under 
the  pressure  of  great  necessity,  such  as  unseaworthiness  or  lack  of 
provisions,  a  neutral  vessel  may  be  justified  in  taking  refuge  in  a 
blockaded  port,  The  Diana  (1869),  7  Wallace,  354.  "Real  and  irre- 
sistible distress,"  said  Lord  Stowell,  "must  be  at  all  times  a  suffi- 
cient passport  for  human  beings  under  any  such  application  of  hu- 
man law."  See  The  Hurtige  Hane  (1799),  2  C.  Robinson,  124;  The 
Charlotta  (1810),  Edwards,  252;  Hallett  &  Bowne  v.  Jenks  (1805), 
3  Cranch,  210;  Brig  Short  Staple  v.  United  States  (1815),  9  Ib.  55; 
The  Aeolus  (1818),  3  Wheaton,  392.  But  he  who  pleads  the  necessity 
has  the  burden  of  proof,  The  Diana  (1869),  7  Wallace,  354. 

In  the  Great  War,  the  Italian  Prize  Court  held  that  if  a  vessel 
violates  a  blockade  both  the  vessel  and  the  cargo  are  subject  to 
confiscation  unless  it  can  be  proved  that  at  the  beginning  of  the 
voyage  the  owners  of  the  cargo  neither  knew  nor  could  have  known 
of  an  intention  to  violate  the  blockade,  The  Aghios  Spiridon,  Gazzetta 
Uffldale,  Feb.  10,  1916.  Knowledge  of  a  blockade  may  be  inferred 
from  the  proximity  of  the  neutral  point  of  departure,  the  length  of 
time  between  the  institution  of  the  blockade  and  the  sailing  of  the 
neutral  vessel,  the  continuous  relations  between  the  inhabitants  of 
the  neutral  and  belligerent  countries  and  especially  from  the  fact 
that  the  cargo  is  composed  in  great  part  of  conditional  contraband, 
The  Aghia  Elene,  Ib.  March  1,  1916. 

The  penalty  for  breach  of  blockade  is  confiscation  of  the  vessel 
and  cargo.  In  The  Mercurius  (1798),  1  C.  Robinson,  80,  Lord  Stowell 
made  a  distinction  when  the  vessel  and  cargo  belonged  to  different 
owners,  but  this  distinction  was  abandoned,  even  by  Lord  Stowell 
himself,  The  Alexander  (1801),  4  Ib.  93; 'The  Adonis  (1804),  5  Ib. 
256;  The  Exchange  (1808),  Edwards,  39;  The  James  Cook  (1810),  Ib. 
261;  The  Panaghia  Rhomba  (Baltazzi  v.  Ryder)  (1858),  12  Moore, 
P.  C.  168;  The  William  Bagaley  (1867),  5  Wallace,  377,  410.  Success 
in  eluding  the  blockading  force  does  not  exempt  a  vessel  from  cap- 
ture, The  Welvaart  Van  Pillaw  (1799),  2  C.  Robinson,  128,  but  it 
remains  liable  to  capture  until  the  end  of  its  return  voyage,  The 
Wren  (1868),  6  Wallace,  582,  unless  prior  to  capture  the  blockade 
has  been  raised,  The  Lisette  (1806),  6  C.  Robinson,  387. 

The  conditions  of  the  Great  War  transformed  the  practice  of  na- 
tions as  to  blockades.  Aside  from  some  blockades  of  minor  import- 
ance, such  as  that  established  by  Austria-Hungary  against  Montenegro, 


THE  ADULA.  661 

that  of  Great  Britain  and  France  against  German  East  Africa,  that 
of  Japan  against  Kiao-Chau,  that  of  Italy  against  Austria  and  Al- 
bania, that  of  Great  Britain  and  France  against  Bulgaria  and  Greece, 
and  a  few  others,  the  blockade,  as  that  term  was  understood  prior 
to  1914,  was  not  used.  The  war  zone  established  by  Germany  about 
Great  Britain  in  1915,  which  was  directed  especially  against  enemy 
vessels,  and  the  war  zone  established  in  January,  1917,  which  was 
directed  against  both  enemy  and  neutral  vessels  and  within  which 
"all  sea  traffic  was  to  be  forthwith  opposed  by  means  of  mines  and 
submarines"  were  not  in  accordance  with  the  pre-war  law  of  block- 
ade. On  the  other  hand,  an  effective  blockade  of  Germany  under 
the  rules  which  obtained  in  previous  wars  was  made  impossible  by  its 
geographical  situation.  So  long  as  transit  through  the  Scandinavian 
countries  and  Holland  was  open,  the  blockade  of  the  German  coast 
was  of  little  value.  Great  Britain  therefore  undertook  to  prevent  all 
commerce  with  Germany  whether  through  German  ports  or  through 
the  territories  of  her  neutral  neighbors.  The  measure  was  not  de- 
scribed as  a  blockade  and  was  not  carried  on  in  accordance  with  the 
rules  of  blockade.  It  provoked  sharp  protests  from  neutrals  whose 
trade  was  interrupted.  The  chief  protestant  was  the  United  States, 
which,  however,  when  it  became  a  belligerent,  assisted  in  the  attain- 
ment of  the  end  in  view  by  forbidding  any  exports  to  neutral  countries 
which  it  had  not  licensed.  There  is  a  clear  legal  distinction  between 
the  British  exclusion  from  neutral  countries  of  neutral  goods  which 
were  destined  to  Germany  and  the  refusal  of  the  United  States  to 
permit  the  export  to  neutral  countries  of  goods  with  an  enemy  des- 
tination. In  substance,  however,  and  in  their  actual  relation  to  both 
the  enemy  and  the  neutral  countries,  the  two  measures  are  identical. 
Furthermore,  in  assisting  in  the  exclusion  of  the  goods  of  other 
neutral  countries  from  the  neutral  countries  adjacent  to  Germany,  the 
United  States  took  the  same  position  as  Great  Britain.  On  the  German 
war  zone,  see  Garner,  I,  ch.  xiv.  The  discussion  between  the  American 
and  British  Governments  as  to  British  interference  with  neutral  trade 
is  well  summarized  in  Hyde,  II,  627  and  in  Garner,  II,  ch.  xxxiii. 

On  the  law  of  blockade  see  Atherley-Jones,  ch.  ii;  Bonfils  (Fau- 
chille),  sec.  1606;  Fauchille,  Du  Blocus  Maritime;  J.  A.  Hall,  The  Law 
of  Naval  Warfare,  ch.  vi;  Int.  Law  Situations,  1901,  139;  Ib.  1907, 
109;  Ib.  1908,  9,  98;  Ib.  1912,  114;  Int.  Law  Topics,  1914,  100;  Cobbett, 
Cases  and  Opinions,  II,  394;  Hyde,  II,  647;  Moore,  Digest,  VII,  ch. 
xvii. 


SECTION  2.    NOTIFIED  AND  DE  FACTO  BLOCKADES. 
THE  ADULA. 

SUPREME  COURT  OF  THE  UNITED  STATES.     1900. 
176  U.  S.  361. 

Appeal  from  the  District  Court  of  the  United  States  for  the 
Southern  District  of  Georgia. 


662  BLOCKADE. 

MR.  JUSTICE  BROWN  .  .  .  delivered  the  opinion  of  the 
court. 

The  rectitude  of  the  decree  of  the  District  Court  condemning 
the  Adula  as  prize  of  war  depends  upon  the  existence  of  a  lawful 
and  effective  blockade  at  Guantanarno,  the  knowledge  of  such 
blockade  by  those  in  charge  of  the  vessel,  and  their  intent  in 
making  the  voyage  from  Kingston. 

1.  No  blockade  of  Guantanamo  was  ever  proclaimed  by  the 
President.  A  proclamation  had  been  issued  June  27,  establish- 
ing a  blockade  of  all  ports  on  the  southern  coast  of  Cuba  between 
Cape  Frances  on  the  west  and  Cape  Cruz  on  the  east,  but  as 
both  Santiago  and  Guantanamo  are  to  the  eastward  of  Cape 
Cruz,  they  were  not  included.  It  appears,  however,  that  block- 
ades of  Santiago  and  Guantanamo  were  established  in  the  early 
part  of  June  by  order  of  Admiral  Sampson,  commander  of  the 
naval  forces  then  investing  the  ports  on  the  southern  coast  of 
Cuba,  and  were  maintained  as  actual  and  effective  blockades  un- 
til after  the  capture  of  the  Adula. 

The  legality  of  a  simple  or  actual  blockade  as  distinguished 
from  a  public  or  presidential  blockade  is  noticed  by  writers  upon 
international  law,  and  is  said  by  Halleck  to  be  "constituted 
merely  by  the  fact  of  an  investment,  and  without  any  necessity 
of  a  public  notification.  As  it  arises  solely  from  facts  it  ceases, 
when  they  terminate;  its  existence  must,  therefore,  in  all  cases, 
be  established  by  clear  and  decisive  evidence."  Halleck,  Int.  L. 
ch.  23,  sec.  10.)  A  de  facto  blockade  was  also  recognized  as  legal 
by  this  court  in  the  case  of  The  Circassian,  2  Wall.  135,  150,  in 
which  the  question  arose  as  to  the  blockade  of  New  Orleans  dur- 
ing the  civil  war.  In  delivering  the  opinion  of  the  court,  the 
Chief  Justice  observed :  ' '  There  is  a  distinction  between  simple 
and  public  blockades  which  supports  this  conclusion.  A  simple 
blockade  may  be  established  by  a  naval  officer,  acting  upon  his 
own  discretion  or  under  direction  of  superiors,  without  govern- 
mental notification;  while  a  public  blockade  is  not  only  estab- 
lished in  fact,  but  is  notified,  by  the  government  directing  it,  to 
other  governments.  In  the  case  of  a  simple  blockade,  the  captors 
are  bound  to  prove  its  existence  at  the  time  of  capture ;  while  in 
the  case  of  a  public  blockade,  the  claimants  are  held  to  proof  of 
discontinuance  in  order  to  protect  themselves  from  the  penalties 
of  attempted  violation."  A  like  ruling  was  made  by  Sir  Wil- 
liam Scott  in  the  case  of  The  Rolla,  6  C.  Bob.  364,  which  was  the 
case  of  an  American  ship  and  cargo,  proceeded  against  for  the 


THE  ADULA.  663 

breach  of  a  blockade  at  Montevideo,  imposed  by  the  British  com- 
mander. It  was  argued,  apparently  upon  the  authority  of  The 
Henrick  and  Maria,  1  C.  Rob.  123,  that  the  power  of  imposing  a 
blockade  is  altogether  an  act  of  sovereignty  which  cannot  be  as- 
sumed or  exercised  by  a  commander  without  special  authority. 
But  says  the  learned  judge :  ' '  The  court  then  expressed  its  opin- 
ion that  this  was  a  position  not  maintainable  to  that  extent;  be- 
cause a  commander  going  out  to  a  distant  .station  may  reasonably 
be  supposed  to  carry  with  him  such  a  portion  of  sovereign  au- 
thority, delegated  to  him,  as  may  be  necessary  to  provide  for 
the  exigencies  of  the  service  upon  which  he  is  employed.  On 
stations  in  Europe,  where  government  is  almost  at  hand  to  super- 
intend and  direct  the  course  of  operations,  under  which  it  may 
be  expedient  that  particular  hostilities  should  be  carried  on,  it 
may  be  different.  But  in  distant  ports  of  the  world  it  cannot 
be  disputed,  I  conceive,  that  a  commander  must  be  held  to  carry 
with  him  sufficient  authority  to  act,  as  well  against  the  commerce 
of  the  enemy,  as  against  the  enemy  himself,  for  the  immediate 
purpose  of  reduction."  See  also  The  Johanna  Maria,  Deane  on 
Blockades,  86. 

In  view  of  the  operations  then  being  carried  on  for  the  pur- 
pose of  destroying  or  capturing  the  Spanish  fleet  and  reducing 
Santiago,  we  think  it  was  competent  for  Admiral  Sampson  to 
establish  a  blockade  there  and  at  Guantanamo  as  an  adjunct  to 
such  operations.  Indeed,  it  would  seem  to  have  been  a  necessity 
that  restrictions  should  be  placed  upon  the  power  of  neutrals 
to  carry  supplies  and  intelligence  to  the  enemy  as  they  would  be 
quite  sure  to  do  if  their  ships  were  given  free  ingress  and  egress 
from  these  harbors.  While  there  could  be  no  objections  to  ves- 
sels carrying  provisions  to  the  starving  insurgents,  if  their  des- 
tination could  be  made  certain,  the  probabilities  were  that  such 
provisions  carried  to  a  beleaguered  port,  would  be  immediately 
seized  by  the  enemy  and  used  for  the  sustenance  of  its  soldiers. 
The  exigency  was  one  which  rendered  it  entirely  prudent  for  the 
commander  of  the  fleet  to  act,  without  awaiting  instructions 
from  Washington. 

But  it  is  contended  that  at.  the  time  of  the  capture,  the  port 
of  Guantanamo  was  completely  in  the  possession  and  control 
of  the  United  States,  and  therefore  that  the  blockade  had  been 
terminated.  It  appears,  however,  that  Guantanamo  is  eighteen 
miles  from  the  mouth  of  Guantanamo  Bay.  Access  to  it  is  ob- 
tained either  by  a  small  river  emptying  into  the  upper  bay,  or 


664  BLOCKADE. 

by  rail  from  Caimanera,  a  town  on  the  west  side  of  the  upper 
bay.  It  seems  that  the  Marblehead  and  the  Yankee  were  sent  to 
Guantanamo  on  June  7 ;  entered  the  harbor  and  took  possession 
of  the  lower  bay  for  the  use  of  American  vessels;  that  the 
Panther  and  Yosemite  were  sent  there  on  the  10th,  and  on  the 
12th  the  torpedo  boat  Porter  arrived  from  Guantanamo  with 
news  of  a  land  battle,  and  from  that  time  the  harbor  was  occu- 
pied by  naval  vessels,  and  by  a  party  of  marines  who  held  the 
crest  of  a  hill  on  the  west  side  of  the  harbor  near  its  entrance, 
and  the  side  of  the  hill  facing  the  harbor.  But  the  town  of 
Guantanamo,  near  the  head  of  the  bay,  was  still  held  by  the 
Spanish  forces,  as  were  several  other  positions  in  the  neighbor- 
hood. The  campaign  in  the  vicinity  was  in  active  progress,  and 
encounters  between  the  United  States  and  Spanish  troops  were 
of  frequent  occurrence. 

In  view  of  these  facts  we  are  of  opinion  that,  as  the  city  of 
Guantanamo  was  still  held  by  the  Spaniards,  and  as  our  troops 
occupied  only  the  mouth  of  the  bay,  the  blockade  was  still  opera- 
tive as  against  vessels  bound  for  the  city  of  Guantanamo.  .  . 
[The  court  also  finds  that  both  the  charterer  and  officers  of  the 
Adula  knew  of  the  blockade  and  intended  to  violate  it.] 

The  decree  of  the  District  Court  was  correct  and  it  is  therefore 

Affirmed. 

MR.  JUSTICE  SHIRAS,  with  whom  concurred  MR.  JUSTICE  GRAY, 
MR.  JUSTICE  WHITE  and  MR.  JUSTICE  PECKHAM,  dissenting. 


NOTE. — Accord:  The  Circassian  (1865),  2  Wallace,  135.  The  cor- 
rectness of  the  decision  in  both  The  Circassian  and  The  Adula  may 
well  be  doubted.  The  defeated  claimants  in  The  Circassian  appealed 
to  the  British  and  American  Claims  Commission  provided  for  by  the 
Treaty  of  Washington  which  allowed  their  claims.  The  opinion  of 
the  dissenting  commissioner  in  favor  of  sustaining  the  Supreme 
Court  went  upon  the  ground  that  there  was  a  distinction  between 
the  city  of  New  Orleans  and  the  port  of  New  Orleans;  that  the  block- 
ade had  extended  to  the  whole  port  while  the  military  occupation 
comprised  only  the  city  which,  in  point  of  area,  was  but  a  small  part 
of  the  port.  See  Moore,  Int.  Arb.  IV,  3911,  and  an  able  discussion  by 
Everett  P.  Wheeler  in  "The  Law  of  Prize  as  affected  by  Decisions 
upon  Captures  made  during  the  Late  War  between  Spain  and  the 
United  States,"  in  Col.  Law  Rev.  I,  141,  150. 

For  discussions  of  the  distinction  between  notified  and  de  facto 
blockades  see  The  Vrouw  Judith  (1798),  1  C.  Robinson,  150;  The 
Mercurious  (1798),  1  Ib.  80;  The  Neptunus  (1799),  1  Ib.  170;  Tho 
Betsey  (1799),  1  Ib.  332;  The  Vrow  Johanna  (1799>,  2  Ib.  109; 


THE  OLINDE  RODRIGUES.  665 

The  Neptunus  (1799),  2  Ib.  110;  The  Welvaart  Van  Pillaw  (1799),  2 
Ib.  128;  The  Adelaide  (1799),  2  Ib.  Ill  n.;  The  Christina  Margaretha 
(1805),  6  Ib.  62;  The  Franciska  (1855),  Spinks,  III:  The  Circassian 
(1865),  2  Wallace,  135;  The  Adula  (1900),  176  U.  S.  361;  Bonfils 
(Fauchille),  sec.  1639;  Hyde,  II,  669;  Moore,  Digest,  VII,  783. 


SECTION  3.    A  BLOCKADE  MUST  BE  EFFECTIVE. 
THE  OLINDE  RODRIGUES. 

SUPEEME   COUBT    OF    THE    UNITED    STATES.       1899. 

174  U.  S.  510. 

Appeal  from  the  District  Court  of  the  United  States  for  the 
District  of  South  Carolina. 

[The  Olinde  Rodrigues,  a  steamship  belonging  to  a  French 
corporation,  sailed  from  France  for  the  West  Indies  June  16, 
1898.  On  June  27,  the  President  of  the  United  States  pro- 
claimed a  blockade  of  San  Juan,  Porto  Rico.  On  July  4,  the 
steamer  entered  the  harbor  of  San  Juan  and  on  coming  out  the 
next  day  was  boarded  by  the  American  cruiser  Yosemite.  She 
disclaimed  any  knowledge  that  San  Juan  was  blockaded,  where- 
upon the  boarding  officer  entered  an  official  warning  on  her  log 
and  she  was  allowed  to  proceed.  On  July  17  she  was  captured 
by  the  American  cruiser  New  Orleans,  then  blockading  San 
Juan,  for  attempting  to  enter  that  port,  taken  to  Charleston, 
South  Carolina,  and  libelled.  The  District  Court  held  that  there 
was  no  effective  blockade  of  the  port  of  San  Juan.  The  United 
States  appealed.] 

MR.  CHIEF  JUSTICE  FULLER  .  .  .  delivered  the  opinion  of 
the  court. 

We  are  unable  to  concur  with  the  learned  District  Judge  in 
the  conclusion  that  the  blockade  of  the  port  of  San  Juan  at  the 
time  this  steamship  was  captured  was  not  an  effective  blockade. 

To  be  binding,  the  blockade  must  be  known,  and  the  block- 
ading force  must  be  present ;  but  is  there  any  rule  of  law  deter- 
mining that  the  presence  of  a  particular  force  is  essential  in 
order  to  render  a  blockade  effective?  We  do  not  think  so,  but 
on  the  contrary,  that  the  test  is  whether  the  blockade  is  prac- 


666  BLOCKADE. 

tically  effective,  and  that  that  is  a  question,  though  a  mixed  one, 
more  of  fact  than  of  law.  , 

The  fourth  maxim  of  the  Declaration  of  Paris  (April  16, 
1856)  was:  "Blockades,  in  order  to  be  binding,  must  be  effect- 
ive, that  is  to  say,  maintained  by  a  force  sufficient  really  to  pre- 
vent access  to  the  coast  of  the  enemy."  Manifestly  this  broad 
definition  was  not  intended  to  be  literally  applied.  The  object 
was  to  correct  the  abuse,  in  the  early  part  of  the  century,  of 
paper  blockades,  where  extensive  coasts  were  put  under  blockade 
by  proclamation,  without  the  presence  of  any  force,  or  an  in- 
adequate force ;  and  the  question  of  what  might  be  sufficient 
force  was  necessarily  left  to  be  determined  according  to  the  par- 
ticular circumstances. 

This  was  put  by  Lord  Russell  in  his  note  to  Mr.  Mason  of 
February  10,  1861,  thus:  "The  Declaration  of  Paris  was  in 
truth  directed  against  what  were  once  termed  '  paper  blockades ; ' 
that  is,  blockades  not  sustained  by  any  actual  force,  or  sustained 
by  a  notoriously  inadequate  naval  force,  such  as  an  occasional  ap- 
pearance of  a  man-of-war  in  the  offing  or  the  like.  .  .  .  The 
interpretation,  therefore,  placed  by  Her  Majesty's  Government 
on  the  declaration  was,  that  a  blockade,  in  order  to  be  respected 
by  neutrals,  must  be  practically  effective.  .  .  .  It  is  proper 
to  add,  that  the  same  view  of  the  meaning  and  effect  of  the  ar- 
ticles of  the  Declaration  of  Paris,  on  the  subject  of  blockades, 
which  is  above  explained,  was  taken  by  the  representative  of  the 
United  States  at  the  Court  of  St.  James  (Mr.  Dallas)  during 
the  communications  which  passed  between  the  two  governments 
some  years  before  the  present  war,  with  a  view  to  the  accession 
of  the  United  States  to  that  declaration."  Hall's  Int.  Law, 
§  260,  p.  730,  note. 

The  quotations  from  the  Parliamentary  debates,  of  May,  1861, 
given  by  Mr.  Dana  in  note  233  to  the  eighth  edition  of  Wheaton 
on  International  Law,  afford  interesting  illustrations  of  what 
was  considered  the  measure  of  effectiveness;  and  an  extract  is 
also  there  given  from  a  note  of  the  Department  of  Foreign  Af- 
fairs of  France  of  September,  1861,  in  which  that  is  defined: 
"Forces  sufficient  to  prevent  the  ports  being  approached  with- 
out exposure  to  a  certain  danger." 

In  The  Mercurius,  1  C.  Rob.  80,  84,  Sir  William  Scott  stated : 
"It  is  said,  this  passage  to  the  Zuyder  Zee  was  not  in  a  state  of 
blockade;  but  the  ship  was  seized  immediately  on  entering  it; 
and  I  know  not  what  else  is  necessarv  to  constitute  blockade. 


THE  OLINDE  RODRIGUES.  667 

The  powers  who  formed  the  armed  neutrality  in  the  last  war, 
understood  blockade  in  this  sense;  and  Russia,  who  was  the 
principal  party  in  that  confederacy,  described  a  place  to  be  in 
a  state  of  blockade,  when  it  is  dangerous  to  attempt  to  enter  into 
it."  . 

And  in  The  Frederick  Molke,  1  C.  Rob.  86,  the  same  great 
jurist  said:  "For  that  a  legal  blockade  did  exist,  results  neces- 
sarily from  these  facts,  as  nothing  farther  is  necessary  to  consti- 
tute blockade,  than  that  there  should  be  a  force  stationed  to 
prevent  communication,  and  a  due  notice,  or  prohibition  given  to 
the  party." 

Such  is  the  settled  doctrine  of  the  English  and  American 
courts  and  publicists,  and  it  is  embodied  in  the  second  of  the 
instructions  issued  by  the  Secretary  of  the  Navy,  June  20,  1898, 
General  Order  No.  492  :  "A  blockade  to  be  effective  and  binding 
must  be  maintained  by  a  force  sufficient  to  render  ingress  to  or 
egress  from  the  port  dangerous." 

Clearly,  however,  it  is  not  practicable  to  define  what  degree  of 
danger  shall  constitute  a  test  of  the  efficiency  and  validity  of 
a  blockade.  It  is  enough  if  the  danger  is  real  and  apparent. 

In  The  Franciska,  2  Spinks,  128,  Dr.  Lushington,  in  passing 
on  the  question  whether  the  blockade  imposed  on  the  port  of 
Riga  was  an  effective  blockade,  said:  "What,  then,  is  an  effi- 
cient blockade,  and  how  has  it  been  defined,  if,  indeed,  the  term 
'definition'  can  be  applied  to  such  a  subject?  The  one  definition 
mentioned  is,  that  egress  or  entrance  shall  be  attended  with 
evident  danger;  another,  that  of  Chancellor  Kent,  (1  Kent's 
Com.  146,)  is,  that  it  shall  be  apparently  dangerous.  All  these 
definitions  are  and  must  be,  from  the  nature  of  blockades,  loose 
and  uncertain ;  the  maintenance  of  a  blockade  must  always  be  a 
question  of  degree, — of  the  degree  of  danger  attending  ships  go- 
ing into  or  leaving  a  blockaded  port.  Nothing  is  further  from 
my  intention,  nor,  indeed,  more  opposed  to  my  notions  of  the 
Law  of  Nations,  than  any  relaxation  of  the  rule  that  a  blockade 
must  be  efficiently  maintained ;  but  it  is  perfectly  obvious  that  no 
force  could  bar  the  entrance  to  absolute  certainty;  that  vessels 
may  get  in  and  get  out  during  the  night,  or  fogs,  or  violent 
winds,  or  occasional  absence;  that  it  is  most  difficult  to  judge 
from  numbers  alone." 

"It  is  impossible,"  says  Mr.  Hall,  (§  260,)  "to  fix  with  any 
accuracy  the  amount  of  danger  in  entry  which  is  necessary  to 
preserve  the  validity  of  a  blockade.  It  is  for  the  prize  courts 


668  BLOCKADE. 

of  the  belligerent  to  decide  whether  in  a  given  instance  a  vessel 
captured  for  its  breach  had  reason  to  suppose  it  to  be  non- 
existent; or  for  the  neutral  government  to  examine,  on  the  par- 
ticular facts,  whether  it  is  proper  to  withhold  or  to  withdraw 
recognition. ' ' 

In  The  Hoffnung,  6  C.  Rob.  112,  117,  Sir  William  Scott  said : 
"When  a  squadron  is  driven  off  by  accidents  of  weather,  which 
must  have  entered  into  the  contemplation  of  the  belligerent  im- 
posing the  blockade,  there  is  no  reason  to  suppose  that  such  a 
circumstance  would  create  a  change  of  system,  since  it  could  not 
be  expected  that  any  blockade  would  continue  many  months, 
without  being  liable  to  such  temporary  interruptions.  But  when 
a  squadron  is  driven  off  by  a  superior  force,  a  new  course  of 
events  arises,  which  may  tend  to  a  very  different  disposition  of 
the  blockading  force,  and  which  introduces  therefore  a  very 
different  train  of  presumptions,  in  favor  of  the  ordinary  free- 
dom of  commercial  speculations.  In  such  a  case  the  neutral 
merchant  is  not  bound  to  foresee  or  to  conjecture  that  the  block- 
ade will  be  resumed. ' '  And  undoubtedly  a  blockade  may  be  so 
inadequate,  or  the  negligence  of  the  belligerent  in  maintaining 
it  may  be  of  such  a  character,  as  to  excuse  neutral  vessels  from 
the  penalties  for  its  violation.  Thus  in  the  case  of  an  alleged 
breach  of  the  blockade  of  the  island  of  Martinique,  which  had 
been  carried  on  by  a  number  of  vessels  on  the  different  stations, 
so  communicating  with  each  other  as  to  be  able  to  intercept  all 
vessels  attempting  to  enter  the  ports  of  the  island,  it  was  held 
that  their  withdrawal  was  a  neglect  which  "necessarily  led 
neutral  vessels  to  believe  these  ports  might  be  entered  without 
incurring  any  risk."  The  Nancy,  1  Acton,  57,  59. 

But  it  cannot  be  that  a  vessel  actually  captured  in  attempting 
to  enter  a  blockaded  port,  after  warning  entered  on  her  log  by 
a  cruiser  off  that  port  only  a  few  days  before,  could  dispute  the 
efficiency  of  the  force  to  which  she  was  subjected. 

As  we  hold  that  an  effective  blockade  is  a  blockade  so  effective 
as  to  make  it  dangerous  in  fact  for  vessels  to  attempt  to  enter 
foe  blockaded  port,  it  follows  that  the  question  of  effectiveness 
is  not  controlled  by  the  number  of  the  blockading  force.  In 
other  words,  the  position  cannot  be  maintained  that  one  modern 
cruiser  though  sufficient  in  fact  is  not  sufficient  as  matter  of 
law. 

Even  as  long  ago  as  1809,  in  The  Nancy,  1  Acton,  63,  where 
the  station  of  the  vessel  was  sometimes  off  the  port  of  Trinity 


THE  OLINDE  RODEIGUES.  669 

and,  at  others,  off  another  port  more  than  seven  miles  distant, 
it  was  ruled  that:  "Under  particular  circumstances  a  single 
vessel  may  be  adequate  to  maintain  the  blockade  of  one  port  and 
co-operate  with  other  vessels  at  the  same  time  in  the  blockade  of 
another  neighboring  port;"  although  there  Sir  William  Grant 
relied  on  the  opinion  of  the  commander  on  that  station  that  the 
force  was  completely  adequate  to  the  service  required  to  be 
performed. 

The  ruling  of  Dr.  Lushington  in  The  Franciska,  above  cited, 
was  to  that  effect,  and  the  text-books  refer  to  other  instances. 

The  learned  District  Judge,  in  his  opinion,  refers  to  the  treaty 
between  France  and  Denmark  of  1742,  which  provided  that  the 
entrance  to  a  blockaded  port  should  be  closed  by  at  least  two 
vessels  or  a  battery  on  shore ;  to  the  treaty  of  1760  between  Hol- 
land and  the  Two  Sicilies  prescribing  that  at  least  six  ships  of 
war  should  be  ranged  at  a  distance  slightly  greater  than  gunshot 
from  the  entrance ;  and  to  the  treaty  between  Prussia  and  Den- 
mark of  1818,  which  stipulated  that  two  vessels  should  be 
stationed  before  every  blockaded  port ;  but  we  do  not  think  these 
particular  agreements  of  special  importance  here,  and,  indeed, 
Ortolan,  by  whom  they  are  cited,  says  that  such  stipulations 
cannot  create  a  positive  rule  in  all  cases  even  between  the  par- 
ties, "since  the  number  of  vessels  necessary  to  a  complete  invest- 
ment depends  evidently  on  the  nature  of  the  place  blockaded." 
2  Ortolan,  (4th  ed.)  330,  and  note  2. 

Nor  do  we  regard  Sir  William  Scott's  judgment  in  The  Ar- 
thur, (1814)  1  Dodson,  423,  425,  as  of  weight  in  favor  of  claim- 
ants. In  effect  the  ruling  sustained  the  validity  of  the  mainte- 
nance of  blockade  by  a  single  ship,  and  the  case  was  thus  stated : 
"This  is  a  claim  made  by  one  of  His  Majesty's  ships  to  share  as 
joint-captor  in  a  prize  taken  in  the  river  Ems  by  another  ship 
belonging  to  His  Majesty,  for  a  breach  of  the  blockade  imposed 
by  the  order  in  council  of  the  26th  of  April,  1809.  This  order 
was,  among  others,  issued  in  the  way  of  retaliation  for  the  meas- 
ures which  had  been  previously  adopted  by  the  French 
government  against  the  commerce  of  this  country.  The  blockade 
imposed  by  it  is  applicable  to  a  very  great  extent  of  coast,  and 
was  never  intended  to  be  maintained  according  to  the  usual  and 
regular  mode  of  enforcing  blockades,  by  stationing  a  number  of 
ships  and  forming  as  it  were  an  arch  of  circumvallation  around 
the  mouth  of  the  prohibited  port.  There,  if  the  arch  fails  in 
any  one  part,  the  blockade  itself  fails  altogether ;  but  this  species 


670  BLOCKADE. 

of  blockade,  which  has  arisen  out  of  the  violent  and  unjust  con- 
duct of  the  enemy,  was  maintained  by  a  ship  stationed  anywhere 
in  the  neighborhood  of  the  coast,  or,  as  in  this  case,  in  the  river 
itself,  observing  and  preventing  every  vessel  that  might  en- 
deavor to  effect  a  passage  up  or  down  the  river." 

Blockades  are  maritime  blockades,  or  blockades  by  sea  and 
land;  and  they  may  be  either  military  or  commercial,  or  may 
partake  of  the  nature  of  both.  The  question  of  effectiveness 
must  necessarily  depend  on  the  circumstances.  We  agree  that 
the  fact  of  a  single  capture  is  not  decisive  of  the  effectiveness  of 
a  blockade,  but  the  case  made  on  this  record  does  not  rest  on  that 
ground. 

We  are  of  opinion  that  if  a  single  modern  cruiser  blockading 
a  port  renders  it  in  fact  dangerous  for  other  craft  to  enter  the 
port,  that  is  sufficient,  since  thereby  the  blockade  is  made  prac- 
tically effective.  .  .  . 

Assuming  that  the  Olinde  Rodrigues  attempted  to  enter  San 
Juan,  July  17,  there  can  be  no  question  that  it  was  dangerous 
for  her  to  do  so,  as  the  result  itself  demonstrated.  She  had  had 
actual  warning  twelve  days  before;  no  reason  existed  for  the 
supposition  that  the  blockade  had  been  pretermitted  or  relaxed ; 
her  commander  had  no  right  to  experiment  as  to  the  practical 
effectiveness  of  the  blockade,  and,  if  he  did  so,  he  took  the  risk ; 
he  was  believed  to  be  making  the  attempt,  and  was  immediately 
captured.  In  these  circumstances  the  vessel  cannot  be  permitted 
to  plead  that  the  blockade  was  not  legally  effective.  .  .  . 

[The  court  then  finds  that  while  the  conduct  of  the  Olinde 
Rodrigues  on  July  17  was  so  suspicious  as  to  justify  seizure  the 
facts  did  not  clearly  show  an  intent  to  enter  the  port  of  San 
Juan.] 

The  entire  record  considered,  we  are  of  opinion  that  restitution 
of  the  Olinde  Rodrigues  should  be  awarded,  without  damages, 
and  that  payment  of  the  costs  and  expenses  incident  to  her  cus- 
tody and  preservation,  and  of  all  costs  in  the  cause  except  the 
fees  of  counsel,  should  be  imposed  upon  the  ship. 

The  decree  of  the  District  Court  will  be  so  modified,  and 

As  modified  affirmed. 

MR.  JUSTICE  McKENNA  dissented  on  the  ground  that  the  evi- 
dence justified  condemnation. 

NOTE. — In  1806-07  Great  Britain  and  France,  by  a  series  of  proclama- 
tions which  were  fantastic  in  their  absurdity,  purported  to  establish 
complete  blockades  of  each  other's  coasts.  See  The  Arthur  (1814), 


NOTE.  671 

1  Dodson,  423;  The  Fox  (1811),  Edwards,  311.  The  obvious  Impos- 
sibility of  sustaining  such  extravagant  pretensions  and  the  damage 
inflicted  upon  neutral  commerce  strengthened  the  view  which  had 
been  many  times  asserted  that  neutrals  should  recognize  only  such 
blockades  as  belligerents  could  make  effective.  In  1800,  John  Mar- 
shaJl.  then  Secretary  of  State,  wrote  to  the  American  minister  to 
England : 

If  the  effectiveness  of  the  blockade  be  dispensed  with,  then 
every  port  of  the  belligerent  powers  may  at  all  times  be  de- 
clared in  that  state,  and  the  commerce  of  neutrals  be  thereby 
subjected  to  universal  capture.  But,  if  this  principle  be  strictly 
adhered  to,  the  capacity  to  blockade  will  be  limited  by  the 
naval  force  of  the  belligerent,  and,  of  consequence,  the  mis- 
chief to  neutral  commerce  cannot  be  very  extensive. 

Moore,  Digest,  VII,  788. 

As  to  what  constitutes  an  effective  blockade  see  Geipel  v.  Smith 
(1872),  L.  R.  7  Q.  B.  404,  410;  The  Adula  (1900),  176  U.  S.  3G1; 
Hooper  v.  United  States  (1887),  22  Ct.  Cl.  408;  The  King  Arthur 
(1905),  Takahashi,  721.  The  number  and  position  of  the  blockading 
vessels  is  immaterial  so  long  as  they  are  able  to  make  the  blockade 
effective,  The  Franciska  (1855),  10  Moore,  P.  C.  37,  and  in  the  absence 
of  evidence  to  the  contrary  the  testimony  of  the  commander  of  the 
blockading  squadron  as  to  its  effectiveness  will  be  accepted,  The 
Nancy  (1809),  1  Acton,  63.  The  fact  that  blockading  vessels  are  not 
seen  on  approaching  the  port  does  not  render  the  blockade  ineffective, 
The  Andromeda  (1865),  2  Wallace,  481,  nor  will  a  temporary 
withdrawal  of  the  blockading  force  because  of  stress  of  weather,  The 
Frederick  Molke  (1798),  1  C.  Robinson,  86;  The  Columbia  (1799),  1 
C.  Robinson,  154,  but  lack  of  diligence  on  the  part  of  the  blockading 
squadron  will  be  evidence  that  there  was  no  blockade  actually  in 
existence,  The  Juffrow  Maria  Schroeder  (1800),  3  C.  Robinson,  147. 
Batteries  ashore  as  well  as  ships  afloat  may  be  used  in  the  mainte- 
nance of  a  blockade,  The  Circassian  (1865),  2  Wallace,  135,  and  it 
would  seem  that  temporary  obstructions  in  the  channels  and  har- 
bors of  the  blockaded  port  are  permissible.  See  Moore,  Digest,  VII, 
855.  As  to  blockade  by  sub-marine  mines  during  the  Great  War,  see 
Phillipson,  International  Law  and  the  Great  War,  381.  See  also 
Hyde,  II,  655;  Moore,  Digest,  VII,  788. 


CHAPTER  XVin. 
CONTRABAND. 

SECTION  1.    ABSOLUTE  AND  CONDITIONAL  CONTRABAND. 
THE  JONGE  MARGARETHA. 

HIGH  COUBT  OF  ADMIRALTY  OF  ENGLAND.     1799. 
1  C.  Robinson,  189. 

This  was  a  case  of  a  Papenberg  ship,  taken  on  a  voyage  from 
Amsterdam  to  Brest  with  a  cargo  of  cheese,  April  1797.  .  .  . 

Sir  W.  SCOTT  [LORD  STOWELL] — There  is  little  reason  to 
doubt  the  property  in  this  case,  and  therefore  passing  over  the 
observations  which  have  been  made  on  that  part  of  the  subject, 
I  shall  confine  myself  to  the  single  question:  Is  this  a  legal 
transaction  in  a  neutral,  being  the  transaction  of  a  Papenberg 
ship  carrying  Dutch  cheeses  from  Amsterdam  to  Brest,  or 
Morlaix  (it  is  said)  but  certainly  to  Brest?  or  as  it  may  be 
otherwise  described,  the  transaction  of  a  neutral  carrying  a 
cargo  of  provisions,  not  the  product  and  manufacture  of  his  own 
country,  but  of  the  enemy's  ally  in  the  war — of  provisions 
which  are  a  capital  ship's  store — and  to  the  great  port  of  naval 
equipment  of  the  enemy. 

If  I  adverted  to  the  state  of  Brest  at  this  time,  it  might  be  no 
unfair  addition  to  the  terms  of  the  description,  if  I  noticed, 
what  was  notorious  to  all  Europe  at  this  time,  that  there  was  in 
that  port  a  considerable  French  fleet  in  a  state  of  preparation 
for  sallying  forth  on  a  hostile  expedition;  its  motions  at  that 
time  watched  with  great  anxiety  by  a  British  fleet  which 
lay  off  the  harbour  for  the  purpose  of  defeating  its  designs.  Is 
the  carriage  of  such  a  supply,  to  such  a  place,  and  on  such  an 
occasion,  a  traffic  so  purely  neutral,  as  to  subject  the  neutral 
trader  to  no  inconvenience? 

672 


THE  JONGE  MARGARETHA.  673 

If  it  could  be  laid  down  as  a  general  position,  in  the  manner 
in  which  it  has  been  argued,  that  cheese  being  a  provision  is 
universally  contraband,  the  question  would  be  readily  answered : 
but  the  Court  lays  down  no  such  position.  The  catalogue  of 
contraband  has  varied  very  much,  and  sometimes  in  such  a  man- 
ner as  to  make  it  very  difficult  to  assign  the  reason  of  the  varia- 
tions; owing  to  particular  circumstances,  the  history  of  which 
has  not  accompanied  the  history  of  the  decisions.  In  1673,  when 
many  unwarrantable  rules  were  laid  down  by  public  authority 
respecting  contraband,  it  was  expressly  asserted  by  Sir  R.  Wise- 
man, the  then  King 's  Advocate,  upon  a  formal  reference  made  to 
him,  that  by  the  practice  of  the  English  Admiralty,  corn,  wine, 
and  oil,  were  liable  to  be  deemed  contraband.  "I  do  agree," 
says  he,  reprobating  the  regulations  that  had  been  published, 
and  observing  that  rules  are  not  to  be  so  hardly  laid  down  as 
to  press  upon  neutrals,  "that  corn,  wine,  and  oil,  will  be  deemed 
contraband. ' ' 

These  articles  of  provisions  then  were  at  that  time  confiscable, 
according  to  the  judgment  of  a  person  of  great  knowledge  and 
experience  in  the  practice  of  this  Court.  In  much  later  times 
many  other  sorts  of  provisions  have  been  condemned  as  contra- 
band. In  1747,  in  the  Jonge  Andreas,  butter,  going  to  Rochelle, 
was  condemned ;  how  it  happened  that  cheese  at  the  same  time 
was  more  favourably  considered,  according  to  the  case  cited  by 
Dr.  Swabey,  I  don 't  exactly  know ;  the  distinction  appears  nice ; 
in  all  probability  the  cheeses  were  not  of  the  species  which  is  in- 
tended for  ship's  use.  Salted  cod  and  salmon  were  condemned 
in  the  Jonge  Frederick,  going  to  Rochelle,  in  the  same  year;  in 
1748,  in  the  Joannes,  rice  and  salted  herrings  were  condemned 
as  contraband.  These  instances  shew  that  articles  of  human 
food  have  been  so  considered,  at  least  where  it  was  probable  that 
they  were  intended  for  naval  or  military  use. 

I  am  aware  of  the  favourable  positions  laid  down  upon  this 
matter  by  Wolfius  and  Vattel,  and  other  writers  of  the  conti- 
nent, although  Vattel  expressly  admits  tb,at  provisions  may, 
under  circumstances,  be  treated  as  contraband.  And  I  take  the 
modern  established  rule  to  be  this,  that  generally  they  are  not 
contraband,  but  may  become  so  under  circumstances  arising  out 
of  the  particular  situation  of  the  war,  or  the  condition  of  the 
parties  engaged  in  it.  The  Court  must  therefore  look  to  the 
circumstances  under  which  this  supply  was  sent. 
45  Among  the  circumstances  which  tend  to  preserve  provisions 


674  CONTRABAND. 

from  being  liable  to  be  treated  as  contraband,  one  is,  that  they 
are  of  the  growth  of  the  country  which  exports  them.  In  the 
present  case,  they  are  the  product  of  another  country,  and  that 
a  hostile  country ;  and  the  claimant  has  not  only  gone  out  of  his 
way  for  the  supply  of  the  enemy,  but  he  has  assisted  the 
enemy's  ally  in  the  war  by  taking  off  his  surplus  commodities. 

Another  circumstance  to  which  some  indulgence,  by  the  prac- 
tice of  nations,  is  shewn,  is,  when  the  articles  are  in  their  native 
and  unmanufactured  state.  Thus  iron  is  treated  with  indul- 
gence, though  anchors  and  other  instruments  fabricated  out  of 
it  are  directly  contraband.  Hemp  is  more  favourably  consid- 
ered than  cordage,  and  wheat  is  not  considered  as  so  noxious  a 
commodity  as  any  of  the  final  preparations  of  it  for  human  use. 
In  the  present  case,  the  article  falls  under  this  unfavourable 
consideration,  being  a  manufacture  prepared  for  immediate  use. 

But  the  most  important  distinction  is,  whether  the  articles 
were  intended  for  the  ordinary  use  of  life,  or  even  for  mercan- 
tile ships'  use;  or- whether  they  were  going  with  a  highly  prob- 
able destination  to  military  use?  Of  the  matter  of  fact,  on 
which  the  distinction  is  to  be  applied,  the  nature  and  quality  of 
the  port  to  which  the  articles  were  going,  is  not  an  irrational 
test ;  if  the  port  is  a  general  commercial  port,  it  shall  be  under- 
stood that  the  articles  were  going  for  civil  use,  although  occa- 
sionally a  frigate  or  other  ships  of  war  may  be  constructed  in 
that  port.  Contra,  if  the  great  predominant  character  of  a  port 
be  that  of  a  port  of  naval  military  equipment,  it  shall  be  in- 
tended that  the  articles  were  going  for  military  use,  although 
merchant  ships  resort  to  the  same  place,  and  although  it  is  pos- 
sible that  the  articles  might  have  been  applied  to  civil  consump- 
tion; for  it  being  impossible  to  ascertain  the  final  use  of  an 
article  ancipitis  usus,  it  is  not  an  injurious  rule  which  deduces 
both  ways  the  final  use  from  the  immediate  destination ;  and  the 
presumption  of  a  hostile  use,  founded  on  its  destination  to  a 
military  port,  is  very  much  imflamed,  if  at  the  time  when  the 
articles  were  going,  a  considerable  armament  was  notoriously 
preparing,  to  which  a  supply  of  those  articles  would  be  eminent- 
ly useful. 

In  the  case  of  the  Eendraght,  cited  for  the  claimant,  the  des- 
tination was  to  Bourdeaux ;  and  though  smaller  vessels  of  war 
may  be  occasionally  built  and  fitted  out  there,  it  is  by  no  means 
a  port  of  naval  military  equipment  in  its  principal  occupation, 
in  the  same  manner  as  Brest  is  universally  known  to  be. 


THE  IMINA.  675 

The  Court,  however,  was  unwilling  in  the  present  case,  to  con- 
clude the  claimant  on  the  mere  point  of  destination,  it  being 
alleged  that  the  cheeses  were  not  fit  for  naval  use,  but  were 
merely  luxuries  for  the  use  of  domestic  tables.  It  therefore  per- 
mitted both  parties  to  exhibit  affidavits  as  to  their  nature  and 
quality.  The  claimant  has  exhibited  none ;  but  here  are  authen- 
tic certificates  from  persons  of  integrity  and  knowledge,  that 
they  are  exactly  such  cheeses  as  are  used  in  British  ships,  when 
foreign  cheeses  are  used  at  all;  and  that  they  are  exclusively 
used  in  French  ships  of  war. 

Attending  to  all  these  circumstances,  I  think  myself  war- 
ranted to  pronounce  these  cheeses  to  be  contraband,  and  con- 
demn them  as  such.  As,  however,  the  party  has  acted  without 
dissimulation  in  the  case,  and  may  have  been  misled  by  an  in- 
attention to  circumstances,  to  which  in  strictness  he  ought  to 
have  adverted,  as  well  as  by  something  like  an  irregular  indul- 
gence on  which  he  has  relied;  I  shall  content  myself  with  pro- 
nouncing the  cargo  to  be  contraband,  without  enforcing  the 
usual  penalty  of  the  confiscation  of  the  ship  belonging  to  the 
same  proprietor. 


THE  IMINA. 

HIGH  COUBT  OF  ADMIRALTY  OF  ENGLAND.     1800. 
3  C.  Robinson,  167. 

This  was  a  case  of  a  cargo  of  ship  timber  which  had  sailed 
July  1798,  from  Dantzick,  originally  for  Amsterdam,  but,  was 
going  at  the  time  of  capture  to  Embden,  in  consequence  of  in- 
formation of  the  blockade  of  Amsterdam.  .  .  . 

Sir  W.  SCOTT  [LORD  STOWELL] — This  is  a  claim  for  a  ship 
taken,  as  it  is  admitted,  at  the  time  of  capture  sailing  for 
Embden,  a  neutral  port ;  a  destination  on  which,  if  it  is  con- 
sidered as  the  real  destination,  no  question  of  contraband  could 
arise;  inasmuch  as  goods  going  to  a  neutral  port,  cannot  come 
under  the  description  of  contraband,  all  goods  going  there  being 
equally  lawful.  It  is  contended,  however,  that  they  are  of  such 
a  nature,  as  to  become  contraband,  if  taken  on  a  destination  to  a 
hostile  port.  On  this  point,  some  difference  of  opinion  seems  to 


676  CONTRABAND. 

have  been  entertained;  and  the  papers  which  are  brought  in, 
may  be  said  to  leave  this  important  fact  in  some  doubt.  Taking 
it  however,  that  they  are  of  such  a  nature  as  to  be  liable  to  be 
considered  as  contraband  on  a  hostile  destination,  I  cannot  fix 
that  character  on  them  in  the  present  voyage.  The  rule  respect- 
ing contraband,  as  I  have  always  understood  it,  is,  that  the  ar- 
ticles must  be  taken  in  delicto,  in  the  actual  prosecution  of  the 
voyage  to  an  enemy's  port.  Under  the  present  understanding 
of  the  law  of  nations,  you  cannot  generally  take  the  proceeds  in 
the  return  voyage.  From  the  moment  of  quitting  port  on  a 
hostile  destination,  indeed,  the  offence  is  complete,  and  it  is  not 
necessary  to  wait,  till  the  goods  are  actually  endeavoring  to 
enter  the  enemy's  port;  but  beyond  that,  if  the  goods  are  not 
taken  in  delicto,  and  in  the  actual  prosecution  of  such  a  voyage, 
the  penalty  is  not  now  generally  held  to  attach. 

Some  argument  has  been  drawn  in  this  case,  from  the  conduct 
of  the  owners.  It  is  said,  "that  they  did  not  consider  these 
articles  as  contraband;  they  were  sent  openly  and  without  sup- 
pression or  disguise : ' '  perhaps  that  alone  would  not  avail  them. 
It  appears,  however,  that  Amsterdam  was  declared  by  this  coun- 
try to  be  in  a  State  of  blockade,  a  circumstance  that  would  make 
it  peculiarly  criminal  to  attempt  to  carry  a  cargo  of  this  nature 
to  that  port.  The  master  receives  information  of  this  fact  at 
Elsineur,  and  on  consultation  with  the  consul  of  the  nation,  to 
which  the  cargo  belonged,  changed  his  purpose,  and  actually 
shaped  his  course  for  Embden,  to  which  place  he  was  sailing  at 
the  time  of  capture.  I  must  ask  then,  was  this  property  taken 
under  such  circumstances  as  to  make  it  subject  to  the  penalty  of 
contraband?  Was  it  taken  in  delicto,  in  the  prosecution  of  an 
intention  of  landing  it  at  a  hostile  port?  Clearly  not — But  it 
is  said,  that  in  the  understanding  and  intention  of  the  owner  it 
was  going  to  a  hostile  port;  and  that  the  intention  on  his  part 
was  complete,  from  the  moment  when  the  ship  sailed  on  that 
destination;  had  it  been  taken  at  any  period  previous  to  the 
actual  variation,  there  could  be  no  question,  but  that  this  inten- 
tion would  have  been  sufficient  to  subject  the  property  to  con- 
fiscation; but  when  the  variation  had  actually  taken  place,  how- 
ever arising,  the  fact  no  longer  existed.  There  is  no  corpus 
delicti  existing  at  the  time  of  capture.  In  this  point  of  view,  I 
think,  the  case  is  very  distinguishable  from  some  other  cases,  in 
which,  on  the  subject  of  deviation  by  the  master,  into  a  block- 
aded port,  the  Court  did  not  hold  the  cargo,  to  be  necessarily 


THE  PETERHOFF.  677 

involved  in  the  consequences  of  that  act.    It  is  argued,  that  as 
the  criminal  deviation  of  the  master  did  not  there  immediately 
implicate  the  cargo;  so  here,  the  favourable  alteration  cannot 
protect  it,  and  that  the  offence  must  in  both  instances,  be  judged 
by  the  act  and  designs  of  the  owner.    But  in  those  cases  there 
was  the  guilty  act,  really  existing  at  the  time  of  capture;  both 
the  ship  and  cargo  were  taken  in  delict o;  and  the  only  question 
was,  to  whom  the  delictum  was  to  be  imputed ;  if  it  was  merely 
the  offence  of  the  master,  it  might  bind  the  owner  of  the  ship, 
whose  agent  he  was ;  but  the  court  hfsld  that  it  would  be  hard  to 
bind  the  owners  of  the  cargo,  by  acts  of  the  master,  who  is  not 
de  jure  their  agent,  unless  so  specially  constituted  by  them.    In 
the  present  instance,  there  is  no  existing  delictum.     In  those 
cases  the   criminal   appearance,   which   did  exist,   was  purged 
away,  by  considering  the  owners  of  the  cargo  not  to  be  neces- 
sarily responsible  for  the  act  of  the  master:  but  here  there  is 
nothing  requiring  any  explanation:    The  cargo  is  taken  on  a 
voyage  to  a  neutral  port.    To  say,  that  it  is  nevertheless  exposed 
to  condemnation,  on  account  of  the  original  destination,  as  it 
stood  in  the  mind  of  the  owners,  would  be  carrying  the  penalty 
of  contraband  further  than  it  has  been  ever  carried  by  this,  or 
the  superior  court.    If  the  capture  had  been  made  a  day  before, 
that  is,  before  the  alteration  of  the  course,  it  might  have  been 
different;  but  however  the  variation  has  happened,  I  am  dis- 
posed to  hold,  that  the  parties  are  entitled  to  the  benefit  of  it; 
and  that  under  that  variation  the  question  of  contraband  does  not 
at  all  arise.     I  shall  decree  restitution;  but  as  it  was  absolutely 
incumbent  on  the  captors  to  bring  the  cause  to  adjudication, 
from  the  circumstance  of  the  apparent  original  destination,  I 
think  they  are  fairly  entitled  to  their  expenses. 

Restitution.    Captor's  expenses  decreed. 


THE  PETERHOFF. 

SUPREME  COUBT  OF  THE  UNITED  STATES.    1866. 
5  Wallace,  28. 

[The  facts  and  the  preceding  parts  of  the  opinion  may  be 
found  ante,  656.] 


678  CONTRABAND. 

The  CHIEF  JUSTICE  [CHASE]  delivered  the  opinion  of  the 
court.  .  .  . 

Thus  far  we  have  not  thought  it  necessary  to  discuss  the  ques- 
tion of  actual  destination  beyond  Matamoras.  .  .  .  Destina- 
tion in  this  case  becomes  specially  important  only  in  connection 
with  the  question  of  contraband. 

And  this  brings  us  to  the  question:  was  any  portion  of  the 
cargo  of  the  Peterhoff  contraband? 

The  classification  of  goods  as  contraband  or  not  contraband 
has  much  perplexed  text-writers  and  jurists.  A  strictly  accu- 
rate and  satisfactory  classification  is  perhaps  impracticable ;  but 
that  which  is  best  supported  by  American  and  English  decisions 
may  be  said  to  divide  all  merchandise  into  three  classes.  Of 
these  classes,  the  first  consists  of  articles  manufactured  and 
primarily  and  ordinarily  used  for  military  purposes  in  time  of 
war;  the  second,  of  articles  which  may  be  and  are  used  for  pur- 
poses of  war  or  peace,  according  to  circumstances;  and  the 
third,  of  articles  exclusively  used  for  peaceful  purposes.  Law- 
rence's Wheaton,  772-6,  note:  The  Commercen,  1  Wheaton,  382; 
Dana's  Wheaton,  629,  note;  Parsons',  Mar.  Law,  93-4.  Mer- 
chandise of  the  first  class,  destined  to  a  belligerent  country  or 
places  occupied  by  the  army  or  navy  of  a  belligerent,  is  always 
contraband;  merchandise  of  the  second  class  is  contraband  only 
when  actually  destined  to  the  military  or  naval  use  of  a  bellig- 
erent ;  while  merchandise  of  the  third  class  is  not  contraband  at 
all,  though  liable  to  seizure  and  condemnation  for  violation  of 
blockade  or  siege. 

A  considerable  portion  of  the  cargo  of  the  Peterhoff  was  of 
the  third  class,  and  need  not  be  further  referred  to.  A  large 
portion,  perhaps,  was  of  the  second  class,  but  is  not  proved,  as 
we  think,  to  have  been  actually  destined  to  belligerent  use,  and 
cannot  therefore  be  treated  as  contraband.  Another  portion 
was,  in  our  judgment,  of  the  first  class,  or,  if  of  the  second,  des- 
tined directly  to  the  rebel  military  service.  This  portion  of  the 
jargo  consisted  of  the  cases  of  artillery  harness,  and  of  articles 
described  in  the  invoices  as  "men's  army  bluchers,"  "artillery 
boots,"  and  "government  regulation  gray  blankets."  These 
goods  come  fairly  under  the  description  of  goods  primarily  and 
ordinarily  used  for  military  purposes  in  time  of  war.  They 
make  part  of  the  necessary  equipment  of  an  army. 

It  is  true  that  even  these  goods,  if  really  intended  for  sale  in 
the  market  of  Matamoras,  would  be  free  of  liability:  for  con- 


NOTE.  679 

traband  may  be  transported  by  neutrals  to  a  neutral  port,  if 
intended  to  make  part  of  its  general  stock  in  trade.  But  there 
is  nothing  in  the  case  which  tends  to  convince  us  that  such  was 
their  real  destination,  while  all  the  circumstances  indicate  that 
these  articles,  at  least,  were  destined  for  the  use  of  the  rebel 
forces  then  occupying  Brownsville,  and  other  places  in  the 
vicinity. 

And  contraband  merchandise  is  subject  to  a  different  rule  in 
respect  to  ulterior  destination  than  that  which  applies  to  mer- 
chandise not  contraband.  The  latter  is  liable  to  capture  only 
when  a  violation  of  blockade  is  intended;  the  former  when  des- 
tined to  the  hostile  country,  or  to  the  actual  military  or  naval 
use  of  the  enemy,  whether  blockaded  or  not.  The  trade  of  neu- 
trals with  belligerents  in  articles  not  contraband  is  absolutely 
free,  unless  interrupted  by  blockade;  the  conveyance  by  neu- 
trals to  belligerents  of  contraband  articles  is  always  unlawful, 
and  such  articles  may  always  be  seized  during  transit  by  sea. 
Hence,  while  articles,  not  contraband,  might  be  sent  to  Mata- 
moras  and  beyond  to  the  rebel  region,  where  the  communications 
were  not  interrupted  by  blockade,  articles  of  a  contraband  char- 
acter, destined  in  fact  to  a  State  in  rebellion,  or  for  the  use  of 
the  rebel  military  forces,  were  liable  to  capture,  though  pri- 
marily destined  to  Matamoras. 

"We  are  obliged  to  conclude  that  the  portion  of  the  cargo 
which  we  have  characterized  as  contraband  must  be  condemned. 

And  it  is  an  established  rule  that  the  part  of  the  cargo  be- 
longing to  the  same  owner  as  the  contraband  portion  must  share 
its  fate.  This  rule  is  well  stated  by  Chancellor  Kent,  thus: 
"Contraband  articles  are  infectious,  as  it  is  called,  and  contam- 
inate the  whole  cargo  belonging  to  the  same  owners,  and  the 
invoice  of  any  particular  article  is  not  usually  admitted,  to 
exempt  it  from  general  confiscation. ' ' 

So  much  of  the  cargo  of  the  Peterhoff,  therefore,  as  actually 
belonged  to  the  owner  of  the  artillery  harness,  and  the  other 
contraband  goods,  must  be  also  condemned.  .  .  . 

NOTE. — The  practice  of  nations  with  regard  to  the  subject  of  con- 
traband has  been  a  fruitful  source  of  controversy  between  belligerents 
and  neutrals,  for  on  this  subject  their  interests  are  in  direct  opposition. 
Changes  in  methods  of  warfare  necessarily  lead  to  the  extension  of 
the  lists  of  contraband  goods,  and  such  extensions  are  usually  op- 
posed by  neutrals  as  an  invasion  of  their  rights.  An  international 
agreement  as  to  what  shall  be  treated  as  contraband,  similar  to  that 
embodied  in  the  Declaration  of  London,  is  much  to  be  desired.  Such 


G80  CONTRABAND. 

an  agreement,  however,  if  it  is  to  be  successful,  must  be  in  closer 
accord  with  the  actual  methods  of  war  than  is  the  Declaration  of 
London,  which  for  instance  provides  that  raw  cotton  and  rubber,  both 
of  which  are  extensively  used  in  war,  shall  never  be  declared  con- 
traband. As  the  Declaration  of  London  was  not  ratified,  it  was  not 
binding  on  the  parties  to  the  Great  War,  and  many  of  the  articles 
enumerated  in  the  free  list  of  the  Declaration  were  included  in  the 
lists  of  contraband  issued  by  the  belligerents. 

The  cases  dealing  with  the  question  as  to  whether  particular  ar- 
ticles are  contraband  are  legion.  Among  the  many  decisions  the 
following  may  be  noted:  The  Staadt  Embden  (1798),  1  C.  Robin- 
son, 26,  The  Charlotte  (1804),  5  Ib.  305  (masts);  The  Jonge  Tobias 
(1799),  1  Ib.  329,  The  Maria  (1799),  1  Ib.  340,  The  Twee  Juffrowen 
(1802),  4  Ib.  242,  The  Schooner  Bird  (1903),  38  Ct.  Cl.  228  (pitch  and 
tar) ;  The  Neptunus  (1800),  3  C.  Robinson,  108  (cordage  and  sail  cloth) ; 
The  ?Endrought  (1798),  1  Ib.  22,  The  Twende  Brodre  (1801),  4  Ib.  33 
(spars,  rudders  and  ship  timbers);  The  Ringende  Jacob  (1798),  1 
Ib.  89,  "The  Gesellschaft  Michael  (1802),  4  Ib.  94,  The  Apollo  (1802), 

4  Ib.  158,  The  Evert  (1803),  4  Ib.  354,  (hemp);  The  Charlotte  (1804), 

5  Ib.  305  (copper  for  the  sheathing  of  vessels);  The  Richmond  (1804), 
5  Ib.  325  (a  ship  so  constructed  as  to  be  convertible  into  a  privateer); 
The  International  (1871),  3  L.  R.  Ad.  &  Eccl.  321   (telegraph  cables); 
The  Bermuda    (1866),   3   Wallace,   514    (printing  presses,   paper,   and 
postage  stamps);    United   States  v.  Diekelman    (1876),   92  U.   S.   520 
(money,    silver   plate,    bullion);    The    Styria   v.    Morgan    (1902),    186 
U.  S.  1  (sulphur);  The  Schooner  Atlantic  (1901),  37  Ct.  Cl.  17,  (1904), 
39   Ib.   193,  The  Brig  Juno    (1903),   38    Ib.   465,  The   Brig   Rensalaer 
(1913),  49  Ib.  1   (horses);  Turkish  Moneys  Taken  at  Mudros   (Malta, 
1916),  2   Br.  &  Col.  P.  C.  336    (money);    The  Katwijk   (1915),  L.  R. 
[1916]  P.  177  (iron  ore);  The  Kronprins  Gustaf   (1919),  L.  R.  [1919] 
P.  182  (coffee). 

Attempts  to  declare  foodstuffs  contraband  have  provoked  sharp  con- 
troversies. There  are  only  three  instances  prior  to  the  Great  War 
in  which  provisions  have  been  treated  as  absolute  contraband — in  the 
early  part  of  the  Napoleonic  wars;  in  the  war  between  France  and 
China  in  1885,  when  France  declared  rice  absolute  contraband;  and 
in  1905,  when  Russia  made  a  similar  declaration.  For  an  account 
of  the  protests  against  the  declarations  of  France  and  Russia,  see 
Moore,  Digest,  VII,  sec.  1253.  For  the  practice  of  Russia  and  Japan 
as  to  contraband  in  the  war  between  those  two  Powers,  see  Smith 
and  Sibley,  ch.  xiii;  Hershey,  The  International  Law  and  Diplomacy 
of  the  Russo-Japanese  War,  and  Cobbett,  Cases  and  Opinions,  II,  432. 
For  the  contraband  lists  of  the  Declaration  of  London,  see  Wilson, 
Handbook,  576,  and  Hershey,  Essentials,  489.  For  the  lists  adopted 
at  various  times  by  various  countries,  see  Moore,  Digest,  VII,  sec. 
1251.  For  the  lists  of  the  Allies  in  the  Great  War,  see  Pyke,  The 
Law  of  Contraband  of  War,  Appendix  C. 

Some  of  the  most  important  cases  discussing  the  question  of  food 
as  contraband  are  The' Jonge  Margaretha  (1799),  1  C.  Robinson,  189; 
The  Edward  (1801),  4  Ib.  68;  The  Commercen  (1816),  1  Wheaton, 


NOTE.  681 

382;  Hooper,  Adm.,  v.  United  States  (1887),  22  Ct.  Cl.  408;  The  Brig 
Sally  (1915),  50  Ib.  129.  In  the  discussion  between  the  British  and 
American  governments  growing  out  of  the  seizure  of  the  Mashona 
and  other  vessels  in  the  Boer  war,  the  Marquis  of  Salisbury  said: 

Foodstuffs  with  a  hostile  destination  can  be  considered  con- 
traband of  war  only  if  they  are  supplies  for  the  enemy's 
forces.  It  is  not  sufficient  that  they  are  capable  of  being  so 
used.  It  must  be  shown  that  this  was  in  fact  their  destination 
at  the  time  of  seizure. 

Moore,  Digest,  VII,  685. 

In  the  Great  War,  in  which  whole  populations  had  such  a  direct 
relation  to  the  contest  that  a  line  between  combatants  and  non-com- 
batants could  not  logically  be  drawn,  the  reason  for  the  distinction 
between  absolute  and  conditional  contraband  disappeared,  and  the 
British  and  French  Governments  therefore  abolished  it.  The  British 
Foreign  Office  issued  the  following  explanation,  quoted  in  Garner, 
II,  287: 

The  circumstances  of  the  present  war  are  so  peculiar  that 
His  Majesty's  Government  consider  that  for  practical  purposes 
the  distinction  between  the  two  classes  of  contraband  has 
ceased  to  have  any  value.  So  large  a  proportion  of  the  in- 
habitants of  the  enemy  country  are  taking  part,  directly  or 
indirectly,  in  the  war  that  no  real  distinction  can  now  be 
drawn  between  the  armed  forces  and  the  civilian  population. 
Similarly,  the  enemy  government  has  taken  control,  by  a 
series  of  decrees  and  orders,  of  practically  all  the  articles  in 
the  list  of  conditional  contraband,  so  that  they  are  now  avail- 
able for  government  use.  So  long  as  these  exceptional  condi- 
tions continue  our  belligerent  rights  with  respect  to  the  two  i 
kinds  of  contraband  are  the  same  and  our  treatment  of  them 
must  be  identical. 

As  to  the  reason  for  according  to  belligerents  the  right  to  seize  con- 
traband on  the  way  to  the  enemy,  a  high  tribunal  has  said: 

The  transportation  of  contraband  articles  to  one  of  the  bel- 
ligerents is  in  itself  an  assault  for  the  time  being  upon  the 
other  belligerents,  in  the  fact  that  it  may  furnish  them  with 
the  weapons  of  war  and  thereby  increase  the  resources  of  their 
power  as  against  their  adversary;  and  for  that  reason,  upon 
the  broad  ground  of  self-preservation  incident  to  nations  as 
well  as  individuals,  the  parties  against  whom  the  quasi  as- 
sault is  made  have  the  right  to  defend  themselves  against  the 
threatened  blow  by  seizing  the  /weapon  before  it  reaches  the 
possession  and  control  of  their  enemy.  The  seizure  of  con- 
traband is  not  only  punishment,  but  it  is  also  prevention,  and 
the  paramount  purpose  of  its  exercise  is  prevention,  just  as 
In  self-defense  on  the  part  of  persons  it  is  to  protect;  but 
when  the  act  is  accomplished,  the  damage  suffered,  and  the 


682  CONTRABAND. 

danger  passed,  then  the  incidents  of  self-defense  cease.  The 
extent  to  which  the  right  to  seize  may  be  carried  in  its  effect 
upon  other  property  belonging  to  the  offending  party  depends 
upon  a  variety  of  circumstances  and  conditions.  The  effect 
of  the  seizure  may  be  confined  to  the  contraband  articles 
alone,  but  may  extend  beyond  those  to  other  property  of  the 
guilty  party  by  way  of  punishment  incident  to  the  wrong  of 
carrying  contraband. 

The  Sloop  Ralph  (1904),  39  Ct.  Cl.  204,  207-208. 

An  excellent  treatment  of  the  subject  oL- contraband  is  Pyke,  The 
Laio  of  Contraband  of  War.  See  also  The  Kronprinsessen  Margareta 
(1920),  L.  R.  [1921]  1  A.  C.  486,  where  the  doctrine  of  infection  is 
discussed;  Atherley-Jones,  ch.  i;  Bentwich,  The  Declaration  of  Lon- 
don; Bentwich,  The  Law  of  Private  Property  in  War,  chs.  viii,  ix;  Kleen, 
De  la  Contrebande  de  Guerre;  Moore,  "Contraband  of  War,"  American 
Philosophical  Society,  Proceedings,  LI,  203;  Int.  Law  Topics,  1905,  21; 
Int.  Law  Situations,  1911,  99,  111;  Westlake,  II,  ch.  x;  Wilson,  Hand- 
book, ch.  xxiv;  Randall,  "History  of  the  Law  of  Contraband  of  War," 
Law  Quar.  Rev.,  XXIV,  316,  449;  Garner,  II,  ch.  xxxii;  Bonfils  (Fau- 
chille),  sec  1537;  Cobbett,  Cases  and  Opinions,  II,  421;  Hyde,  II,  572; 
Moore,  Digest,  VII,  ch.  xxvi. 


SECTION  2.    CONTRABAND  PERSONS. 

YANGTSZE  INSURANCE  ASSOCIATION  v.  INDEMNITY 
MUTUAL  MARINE  ASSURANCE  COMPANY. 

KING'S  BENCH  DIVISION  OF  THE  HIGH  COURT  OF  JUSTICE  OF  ENGLAND. 

1908. 
Law  Reports   [1908]   1  K.  B.  910. 

[In  the  course  of  the  war  between  Russia  and  Japan,  the 
plaintiff  underwrote  a  policy  of  insurance  for  £18,000  on  the 
steamer  Nigretia,  and  reinsured  a  part  of  their  risk  by  a  policy 
for  £15,000  underwritten  by  the  defendant.  Both  policies  pro- 
vided ''warranted  no  contraband  of  war."  The  Nigretia,  while 
carrying  two  Russian  naval  officers  who  had  assumed  German 
names,  was  captured  by  a  Japanese  cruiser  and  condemned  by 
the  Prize  Court  of  Sasebo  on  the  ground  that  it  was  "transport- 
ing contraband  persons."  The  plaintiffs  paid  or  compounded 
on  the  original  policy  as  a  total  loss  and  then  brought  action 
against  the  defendant  for  indemnification  on  the  policy  of  re- 
insurance. The  defendant  pleaded  that  the  transportation  of 


YANGTSZE  INS.  ASSOC.  v.  INDEMNITY  &c.  CO.    683 

the  Russian  naval  officers  was  a  breach  of  the  proviso  "war- 
ranted no  contraband  of  war."] 

BIGHAM,  J.  read  the  following  judgment : 

This  is  an  action  brought  on  a  policy  of  marine  insurance 
effected  by  the  plaintiffs  with  the  defendants,  which  contained  a 
warranty  "no  contraband  of  war."  The  only  question  to  be 
determined  is  whether  the  defendants  have  proved  a  breach  of. 
the  warranty  so  as  to  relieve  them  from  liability.  (The  learned 
judge  then  stated  the  facts  as  above  -set  out.  and  proceeded  as 
follows: — )  The  defendants  say  they  are  not  liable,  because 
there  has  been  a  breach  of  the  warranty  "no  contraband  of  war 
on  basis  of  cable  dated  31  October,  1904";  and  the  question  re- 
solves itself  into  this:  Are  contraband  persons  contraband  of 
war  within  the  meaning  of  the  warranty  ?  I  am  of  opinion  that 
they  are  not.  "Contraband  of  war"  is  an  expression  which  in 
ordinary  language  is  used  to  describe  certain  classes  of  material, 
and  does  not  cover  human  beings.  Many  text-writers  on  inter- 
national law  have  no  doubt  used  the  expression  "contraband 
persons,"  but  I  think  I  am  right  in  saying  that  such  words  are 
not  to  be  found  in  any  English  case,  and  certainly  not  in  sucli 
connection  as  to  shew  that  they  describe  a  class  of  contraband  of 
war.  The  most  recent  text-writers  treat  persons  as  outside  any 
accepted  definition  of  contraband.  The  transport  of  "contra- 
band persons"  may  no  doubt  in  some  cases  involve  the  same 
consequences  to  the  ship  as  the  carriage  of  contraband,  but  so 
may  other  acts  on  the  part  of  the  ship,  as,  for  instance,  transmit- 
ting information  to  the  enemy.  It  would  in  my  opinion  be 
wrong  to  say  that,  because  the  same  results  may  follow  in  the 
one  case  as  in  the  other,  therefore  the  two  cases  are  identical  and 
may  be  covered  by  one  definition.  The  Japanese  Court  care- 
fully avoided  describing  these  officials  as  contraband  of  war,  and 
used  the  somewhat  novel,  but  for  their  purpose  sufficient,  ex- 
pression "contraband  persons."  The  view  which  I  take  of  this 
matter  is  well  expressed  in  the  5th  edition  of  the  late  Mr.  Hall 's 
Treatise  on  International  Law  at  p.  673,  where  he  says:  "With 
the  transport  of  contraband  merchandise  is  usually  classed  anal- 
ogically that  of  despatches  bearing  on  the  conduct  of  the  war, 
and  of  persons  in  the  service  of  a  belligerent.  It  is,  however, 
more  correct  and  not  less  convenient  to  place  adventures  of  this 
kind  under  a  distinct  head,  the  analogy  which  they  possess  to 
the  carriage  of  articles  contraband  of  war  being  always  remote. 


684  CONTRABAND. 

They  differ  from  it  in  some  cases  by  involving  an  intimacy  of 
connection  with  the  belligerent  which  cannot  be  inferred  from 
the  mere  transport  of  contraband  of  war,  and  in  others  by  im- 
plying a  purely  accidental  and  almost  involuntary  association 
with  him.  They  are  invariably  something  distinctly  more  or 
something  distinctly  less  than  the  transport  of  contraband 
amounts  to.  "When  they  are  of  the  former  character  they  may 
be  undertaken  for  profit  alone,  but  they  are  not  in  the  way  of 
mere  trade.  The  neutral  individual  is  not  only  taking  his  goods 
for  sale  to  the  best  market,  irrespectively  of  the  effect  which  their 
sale  to  a  particular  customer  may  have  on  the  issue  of  the  war, 
but  he  makes  a  specific  bargain  to  carry  despatches  or  persons 
in  the  service  of  the  belligerent  for  belligerent  purposes ;  he  thus 
personally  enters  the  service  of  the  belligerent,  he  contracts  as  a 
servant  to  perform  acts  intended  to  affect  the  issue  of  the  war, 
he  makes  himself  in  effect  the  enemy  of  the  other  belligerent.  In 
doing  so  he  does  not  compromise  the  neutrality  of  his  own  sov- 
ereign, because  the  non-neutral  acts  are  either  as  a  matter  of 
fact  done  beyond  the  territorial  jurisdiction  of  the  latter,  or  if 
initiated  within  it,  as  sometimes  is  the  case  in  carrying  de- 
spatches, they  are  of  too  secret  a  nature  to  be,  as  a  general  rule, 
known  or  prevented.  Hence  the  belligerent  is  allowed  to  pro- 
tect himself  by  means  analogous  to  those  which  he  uses  in  the 
suppression  of  contraband  trade.  He  stops  the  trade  by  force, 
and  inflicts  a  penalty  on  the  neutral  individuals.  The  real 
analogy  between  carriage  of  contraband  and  acts  of  the  kind  in 
question  lies  not  in  the  nature  of  the  acts,  but  in  the  nature  of 
the  remedy  applicable  in  respect  of  them.  When  the  acts  done 
are  of  the  second  kind,  the  belligerent  has  no  right  to  look  upon 
them  as  being  otherwise  than  innocent  in  intention.  .  .  . 
"When  ...  a  neutral  in  the  way  of  his  ordinary  business 
holds  himself  out  as  a  common  carrier,  willing  to  transport 
everybody  who  may  come  to  him  for  a  certain  sum  of  money 
from  one  specified  place  to  another,  he  cannot  be  supposed  to 
identify  himself  specially  with  belligerent  persons  in  the  service 
of  the  state  who  take  passage  with  him."  A  little  further  on, 
at  p.  682,  when  examining  the  terms  of  the  despatches  which 
passed  between  Great  Britain  and  the  United  States  of  America 
in  connection  with  the  Trent  case,  Mr.  Hall  points  out  that, 
whereas  Admiralty  Courts  have  power  to  try  claims  to  contra- 
band goods,  they  have  no  power  to  try  claims  concerning  con- 
traband persons;  and  he  adds:  "To  say  that  Admiralty  Courts 


NOTE.  685 

have  no  means  of  rendering  a  judgment  in  favour  of  or  against 
persons  alleged  to  be  contraband,  or  of  determining  what  dis- 
position is  to  be  made  of  them,  is  to  say  that  persons  have  not 
been  treated  as  contraband.  If  they  are  contraband  the  courts 
must  have  power  to  deal  with  them." 

I  agree  that  my  interpretation  makes  it  difficult  to  say  to 
what  the  warranty  would  apply,  having  regard  to  the  fact  that 
the  policy  already  contained  a  warranty  that  the  cargo  should 
consist  of  kerosene  only;  but  this  difficulty  ought  not,  in  my 
opinion,  to  induce  me  to  depart  from  what  I  am  satisfied  is  the 
plain  meaning  of  the  words,  and  the  sense  in  which  they  are 
always  understood  among  underwriters  and  merchants. 

Judgment  for  the  plaintiffs. 

NOTE. — The  term  contraband  persons  is  open  to  serious  objections, 
but  nevertheless  it  is  employed  by  some  writers  of  repute.  See  Philli- 
more  (3rd  Ed.),  Ill,  459;  Creasy,  First  Platform  of  International  Law, 
631;  Bluntschli,  sees.  815-817;  Calvo  (2nd  Ed.),  II,  494.  The  over- 
whelming weight  of  authority,  however,  confines  the  term  contraband 
to  goods.  The  most  notable  controversy  in  which  the  question  was 
involved  was  that  which  grew  out  of  the  stopping  of  the  British 
steamer  Treat  and  the  removal  therefrom  of  the  Confederate  com- 
^nissioners  Mason  and  Slidell.  The  act  was  unwarranted,  but  in  re- 
sponse to  the  British  demand  for  their  surrender,  Secretary  Seward, 
in  his  letter  of  December  26,  1861,  attempted  to  justify  their  capture 
on  the  ground  that  they  were  contraband  or  analogues  of  contraband. 
He  admitted  however  that  the  captor,  in  failing  to  bring  the  vessel 
before  a  prize  court,  had  not  complied  with  the  requirements  of  inter- 
national law.  But  even  if  that  had  been  done,  he  said,  the  court  could 
only  have  passed  upon  the  validity  of  the  capture  of  the  vessel,  thus 
leaving  to  diplomacy  the  determination  of  the  status  and  disposition  of 
the  captured  persons.  Secretary  Seward  thus  found  himself  con- 
fronted by  the  position  taken  by  the  United  States  in  its  long  con- 
troversy with  Great  Britain  as  to  the  impressment  of  seamen  on 
American  vessels,  and  he  finally  concluded  that  in  demanding  the  sur- 
render of  Mason  and  Slidell  Great  Britain  was  only  adopting  the  prin- 
ciple for  which  the  United  States  had  always  contended.  "We  are 
asked,"  he  said,  "to  do  to  the  British  nation  just  what  we  have  al- 
ways insisted  all  nations  should  do  to  us."  Throughout  this  negotia- 
tion, Secretary  Seward  confused  the  notion  of  contraband  persons 
with  the  notion  of  unneutral  service.  Captain  Wilkes,  who  made  the 
capture,  was  more  discriminating.  He  said,  "There  was  no  doubt  I 
had  the  right  to  capture  vessels  with  written  dispatches.  ...  I 
then  considered  them  [the  two  commissioners]  as  the  embodiment  of 
despatches."  See  Marquardsen,  Der  Trent-Fall;  Harris,  The  Trent  Af- 
fair; Cobbett,  Coses  and  Opinions,  II,  454;  Hyde,  II,  636;  Moore,  Digest, 
VII,  626,  768.  For  General  Butler's  application  of  the  term  contra- 
band to  the  slaves  who  took  refuge  in  his  Camp,  see  Butler's  Book,  259. 


686  CONTRABAND. 

SECTION  3.    PENALTY  FOR  THE  CARRIAGE  OF  CONTRABAND. 
THE  NEUTRALITET. 

HIGH  COXJBT  OF  ADMIRALTY  OF  ENGLAND.    1801. 
3  C.  Robinson,  295. 

This  was  a  case  of  a  Danish  ship  taken  with  a  cargo  of  tar 
on  a  voyage  from  Archangel  to  Dordrecht.  The  ship  had  been  a 
Dutch  vessel,  and  was  asserted  to  have  been  purchased  by  Mr. 
Schultz  of  Altona.  She  then  went  from  Holland  to  Altona, 
and  was  from  thence  sent  on  to  Archangel,  to  carry  a  cargo  to 
Dordrecht,  under  a  charter  party  made  by  the  asserted  owner. 

Judgment, — Sir  W.  SCOTT  [LORD  STOWELL] — The  modern 
rule  of  the  law  of  nations  is,  certainly,  that  the  ship  shall  not  be 
subject  to  condemnation  for  carrying  contraband  articles.  The 
ancient  practice  was  otherwise,  and  it  cannot  be  denied,  that 
it  was  perfectly  defensible  on  every  principle  of  justice.  If  to 
supply  the  enemy  with  such  articles  is  a  noxious  act  with  re- 
spect to  the  owner  of  the  cargo,  the  vehicle  which  is  instrument- 
al in  effecting  that  illegal  purpose  cannot  be  innocent.  Trie 
policy  of  modern  times  has  however  introduced  a  relaxation  on 
this  point ;  and  the  general  rule  now  is,  that  the  vessel  does  not 
become  confiscable  for  that  act :  But  this  rule  is  liable  to  excep- 
tions:— Where  a  ship  belongs  to  the  owner  of  the  cargo,  or 
where  the  ship  is  going  on  such  service,  under  a  false  destina- 
tion or  false  papers;  these  circumstances  of  aggravation  have 
been  held  to  constitute  excepted  cases  out  of  the  modern  rule, 
and  to  continue  them  under  the  ancient  one.  The  circumstances 
of  the  present  case  compose  a  case  of  exception  also ;  for  it  is  a 
case  of  singular  misconduct  on  the  part  of  the  asserted  ship 
owners.  They  are  subjects  of  Denmark,  and  as  such  are  under 
the  peculiar  obligations  of  a  treaty  not  to  carry  goods  of  this 
nature  for  the  use  of  the  enemies  of  Great  Britain. 

A  reference  has  been  made  to  ancient  cases  of  Dantzick  ships, 
which  were  restored,  though  taken  carrying  masts  to  Cadiz. 
The  particulars  of  those  cases  are  not  very  exactly  stated;  but 
they  were  clearly  the  cases  of  proprietors  exporting  the  produce 
of  their  own  territory  or  neighboring  parts,  without  the  breach 
of  any  obligation  but  such  as  the  general  law  of  nations  imposed. 
In  this  instance  the  ship  was  freighted  at  Altona,  to  go  to 


THE  HAABET.  687 

Archangel,  for  the  purpose  of  carrying  a  cargo  of  tar  to  Hol- 
land, which  is  a  commerce  expressly  prohibited  by  the  Danish 
treaty.  Tar  is  an  article  which  a  Danish  ship  cannot  lawfully 
carry  to  an  enemy's  port,  even  when  it  is  the  produce  and  man- 
ufacture of  Denmark.  This  ship  goes  to  a  foreign  port,  to  effect 
that  which  she  is  prohibited  from  doing,  even  for  the  produce 
of  her  own  country:  in  this  respect,  throwing  off  the  character 
of  a  Danish  ship  by  violating  the  treaties  of  her  country;  and 
all  this  is  done,  with  the  full  privity  of  the  asserted  owner,  who 
is  the  person  entering  into  the  charter  party.  In  such  a  case 
as  the  present,  the  known  ground  on  which  the  relaxation  was 
introduced,  the  supposition  that  freights  of  noxious  or  doubtful 
articles  might  be  taken,  without  the  personal  knowledge  of  the 
owner  entirely  fails;  and  the  active  guilt  of  the  parties  is  ag- 
gravated by  the  circumstances,  of  its  being  a  criminal  traffick 
in  foreign  commodities,  and  in  breach  of  explicit  and  special 
obligations.  The  confiscation  of  a  ship  so  engaged,  will  leave 
the  general  rule  still  untouched,  that  the  carriage  of  contraband 
works  a  forfeiture  of  freight  and  expenses,  but  not  of  the  ship. 

Ship  condemned. 


THE  HAABET. 

HIGH  COCBT  OF  ADMIRALTY  OF  ENGLAND.    1800. 
2  C.  Robinson,  174. 

This  was  a  case  arising  on  an  objection  to  a  report  of  the 
registrar  and  merchants  respecting  the  allowance  of  insurance, 
as  part  of  the  price  of  a  cargo  of  wheat,  going  from  Altona  to 
Cadiz,  but  seized  and  brought  into  this  country,  and  bought  by 
Government.  The  demand  of  the  claimant,  Mr.  Peschie  of 
Copenhagen,  had  been  disallowed  in  the  report,  on  the  ground 
that  the  insurance  had  not  actually  been  made.  .  .  . 

SIB  WM.  SCOTT  [LORD  STOWELL].  .  .  .  The  question  is, 
Whether  there  is  any  reasonable  ground  for  me  to  pronounce 
that  the  Registrar  and  merchants  have  disallowed  a  just  de- 
mand, in  disallowing  a  charge  of  insurance  which  had  not  been 
made.  It  has  been  argued  that  this  charge  ought  to  have  been 
allowed,  because  it  is  usually  so  allowed  in  the  dealings  of  mer- 
chants with  each  other;  I  am  not  clear  that  this  is  a  necessarv 


688  CONTRABAND. 

consequence,  for  it  is  surely  no  certain  rule  that  in  all  cases 
where  a  cargo  is  taken  jure  belli  but  for  the  mere  purpose  of 
preemption,  that  it  is  to  receive  a  price  calculated  exactly  iu 
the  same  manner,  and  amounting  precisely  to  the  same  value, 
as  it  would  have  done,  if  it  had  arrived  at  its  port  of  destination 
in  the  ordinary  course  of  trade. 

The  right  of  taking  possession  of  cargoes  of  this  description, 
Commeatus  or  Provisions,  going  to  the  enemy's  ports,  is  no  pe- 
culiar claim  of  this  country;  it  belongs  generally  to  belligerent 
nations;  the  ancient  practice  of  Europe,  or  at  least  of  several 
maritime  states  of  Europe,  was  to  confiscate  them  entirely;  a 
century  has  not  elapsed  since  this  claim  has  been  asserted  by 
some  of  them.  A  more  mitigated  practice  has  prevailed  in  later 
times  of  holding  such  cargoes  subject  only  to  a  right  of  pre- 
emption, that  is,  to  a  right  of  purchase  upon  a  reasonable  com- 
pensation to  the  individual  whose  property  is  thus  diverted.  I 
have  never  understood  that,  on  the  side  of  the  belligerent,  this 
claim  goes  beyond  the  case  of  cargoes  avowedly  bound  to  the 
enemy's  ports,  or  suspected,  on  just  grounds,  to  have  a  con- 
cealed destination  of  that  kind;  or  that  on  the  side  of  the  neu- 
tral, the  same  exact  compensation  is  to  be  expected,  which  he 
might  have  demanded  from  the  enemy  in  his  own  port;  the 
enemy  may  be  distressed  by  famine,  and  may  be  driven  by  his 
necessities  to  pay  a  famine  price  for  the  commodity  if  it  gets 
there;  it  does  not  follow  that  acting  upon  my  rights  of  war  in 
intercepting  such  supplies,  I  am  under  the  obligation  of  paying 
that  price  of  distress.  It  is  a  mitigated  exercise  of  war  on  which 
my  purchase  is  made,  and  no  rule  has  established,  that  such  a 
purchase  shall  be  regulated  exactly  upon  the  same  tenns  of 
profit,  which  would  have  followed  the  adventure,  if  no  such  ex- 
ercise of  war  had  intervened;  it  is  a  reasonable  indemnification 
and  a  fair  profit  on  the  commodity  that  is  due,  reference  being 
had  to  the  original  price  actually  paid  by  the  exporter,  and  the 
expences  which  he  has  incurred.  As  to  what  is  to  be  deemed  a 
reasonable  indemnification  and  profit,  I  hope  and  trust  that  this 
country  will  never  be  found  backward  in  giving  a  liberal  inter- 
pretation to  these  terms;  but  certainly  the  capturing  nation 
does  not  always  take  these  cargoes  on  the  same  terms  on  which 
an  enemy  would  be  content  to  purchase  them;  much  less  are 
cases  of  this  kind  to  be  considered  as  cases  of  costs  and  damages, 
in  which  all  loss  of  possible  profit  is  to  be  laid  upon  unjust  cap- 


CARBINGTON  v.  MERCHANTS'  INS.  CO.          689 

tors ;  for  these  are  not  unjust  captures,  but  authorized  exercises 
of  the  rights  of  war.    .    .    . 

Upon  the  whole,  I  see  no  sufficient  reason  to  pronounce  that 
the  Registrar  and  merchants  have  adopted  a  wrong  measure  of 
value  in  disallowing  the  charge  of  insurance.  .  .  . 

Report  confirmed. 


EDWARD  CARRINGTON  AND  OTHERS  v.  THE  MER- 
CHANTS'  INSURANCE  COMPANY.  . 

SUPREME  COUBT  OF  THE  UNITED  STATES.    1834. 
8  Peters,  495. 

[In  November,  1824,  while  open  hostilities  existed  between 
Spain  and  the  new  governments  of  Chili  and  Peru,  the  defend- 
ants underwrote  a  policy  of  insurance  for  the  plaintiffs  covering 
property  of  the  latter  on  board  the  ship  General  Carrington. 
The  policy,  which  ran  for  twelve  months  from  June  5,  1824,  was 
against  the  usual  perils,  and  contained  this  clause :  "  It  is  also 
agreed  that  the  assurers  shall  not  be  answerable  for  any  charge, 
damage  or  loss  which  may  arise  in  consequence  of  seizure  or  de- 
tention, for  or  on  account  of  illicit  or  prohibited  trade,  or  trade 
in  articles  contraband  of  war."  The  ship  sailed  from  Provi- 
dence, Rhode  Island,  cleared  for  the  Sandwich  Islands  and 
Canton,  but  was  immediately  bound  for  Valparaiso,  Chili,  which 
port  she  was  to  enter  under  a  plea  of  want  of  water,  with  such 
ulterior  destination  as  was  stated  in  her  orders.  This  was  the 
usual  mode  of  clearance  at  that  time  for  ships  bound  to  Chili 
and  Peru.  The  vessel  carried  a  large  amount  of  munitions  of 
war  in  her  cargo,  the  most  of  which  were  disposed  of  at  Val- 
paraiso before  the  policy  of  insurance  had  attached.  The  vessel 
then  proceeded  to  Quilca,  Peru,  where  she  was  seized  by  the 
Spanish  authorities  and  condemned  for  trading  in  contraband 
of  war  at  Valparaiso.  The  question  at  issue  is  the  liability  of 
the  insurance  company  under  the  policy.  The  Circuit  Court 
being  divided  in  opinion  certified  certain  questions  to  the  Su- 
preme Court  for  a  final  decision  thereon.] 

MR.  JUSTICE  STORY  delivered  the  opinion  of  the  court.    .    .    . 

The  second  question  is,  whether,  assuming  the  other  facts  to 

be  as  stated  and  alleged  above,  and  taking  the  authority  of  the 


690  CONTRABAND. 

seizing  vessel  to  be  such  as  the  plaintiffs  allege  (that  is  to  say,  of 
an  armed  vessel,  fitted  out  and  commissioned  at  Callao  by  Rodil 
[military  commander] ) ,  there  was  a  legal  and  justifiable  cause 
for  the  seizure  of  the  General  Carrington  and  her  cargo.  The 
third  is  precisely  the  same  in  terms,  except  taking  the  authority 
of  the  armed  vessel  to  be  such  as  the  defendants  allege  (that  is 
to  say,  to  be  an  armed  vessel  sailing  under  the  royal  Spanish 
flag,  and  acting  by  the  royal  authority  of  Spain). 

Both  these  questions  present  the  same  general  point,  whether 
there  was,  under  the  circumstances  of  the  case,  a  legal  and  justi- 
fiable cause  of  the  seizure  and  detention  of  the  ship  and  her 
cargo.  The  facts  material  to  be  taken  into  consideration  in  as- 
certaining this  point  are,  that  the  ship,  when  seized,  had  not 
landed  all  her  outward  cargo,  but  was  still  in  the  progress  of  the 
outward  voyage  originally  designated  by  the  owners;  that  she 
sailed  on  that  voyage  from  Providence  with  contraband  articles 
on  board,  belonging,  with  the  other  parts  of  the  cargo,  to  the 
owners  of  the  ship,  with  a  false  destination  and  false  papers, 
which  yet  accompanied  the  vessel;  that  the  contraband  articles 
had  been  landed,  before  the  policy,  which  is  a  policy  on  time, 
designating  no  particular  voyage,  had  attached ;  that  the  under- 
writers, though  taking  no  risks  within  the  exception,  were  not 
ignorant  of  the  nature  and  objects  of  the  voyage;  and  that  the 
alleged  cause  of  the  seizure  and  detention  was,  the  trade  in 
articles  contraband  of  war  by  the  landing  of  the  powder  and 
muskets  already  mentioned. 

If  by  the  principles  of  the  law  of  nations  there  existed  under 
these  circumstances,  a  right  to  seize  and  detain  the  ship  and  her 
remaining  cargo,  and  to  subject  them  to  adjudication  for  a  sup- 
posed forfeiture,  notwithstanding  the  prior  deposit  of  the  con- 
traband goods;  then  the  question  must  be  answered  in  the 
affirmative,  that  there  was  a  legal  and  justifiable  cause. 

According  to  the  modern  law  of  nations,  for  there  has  been 
some  relaxation  in  practice  from  the  strictness  of  the  ancient 
rules,  the  carriage  of  contraband  goods  to  the  enemy,  subjects 
them,  if  captured,  in  delicto,  to  the  penalty  of  confiscation;  but 
the  vessel  and  the  remaining  cargo,  if  they  do  not  belong  to  the 
owner  of  the  contraband  goods,  are  not  subject  to  the  same 
penalty.  The  penalty  is  applied  to  the  latter,  only  when  there 
has  been  some  actual  co-operation,  on  their  part,  in  a  meditated 
fraud  upon  the  belligerents,  by  covering  up  the  voyage  under 
false  papers,  and  with  a  false  destination.  This  is  the  general 


CARRINGTON  v.  MERCHANTS'  INS.  CO.          691 

doctrine  when  the  capture  is  made  in  transitu,  while  the  contra- 
band goods  are  yet  on  board.  But  when  the  contraband  goods 
have  been  deposited  at  the  port  of  destination,  and  the  sub- 
sequent voyage  has  thus  been  disconnected  with  the  noxious 
articles,  it  has  not  been  usual  to  apply  the  penalty  to  the  ship 
or  cargo  upon  the  return  voyage,  although  the  latter  may  be  the 
proceeds  of  the  contraband.  And  the  same  rule  would  seem, 
by  analogy,  to  apply  to  cases  where  the  contraband  articles  have 
been  deposited  at  an  intermediate  port  on  the  outward  voyage, 
and  before  it  had  terminated ;  although  there  is  not  any  author- 
ity directly  in  point.  But  in  the  highest  prize  courts  of  Eng- 
land, while  the  distinction  between  the  outward  and  homeward 
voyage  is  admitted  to  govern,  yet  it  is  established,  that  it  exists 
only  in  favour  of  neutrals,  who  conduct  themselves  with  fairness 
and  good  faith  in  the  arrangements  of  the  voyage.  If,  with  a 
view  to  practice  a  fraud  upon  the  belligerent,  and  to  escape 
from  his  acknowledged  right  of  capture  and  detention,  the  voy- 
age is  disguised,  and  the  vessel  sails  under  false  papers;  and 
with  a  false  destination,  the  mere  deposit  of  the  contraband  in 
the  course  of  the  voyage,  is  not  allowed  to  purge  away  the  guilt 
of  the  fraudulent  conduct  of  the  neutral.  In  the  case  of  the 
Franklin,  in  1801,  3  Rob.  217,  Lord  Stowell  said,  "I  have  delib- 
erated upon  this  case,  and  desire  it  to  be  considered  as  the  set- 
tled rule  of  law  received  by  this  court,  that  the  carriage  of  con- 
traband with  a  false  destination,  will  make  a  condemnation  of 
the  ship,  as  well  as  the  cargo."  Shortly  afterwards,  in  the  case 
of  the  Neutralitet,  1801,  3  Rob.  R.  295,  he  added,  "The  modern 
rule  of  the  law  of  nations  is  certainly,  that  the  ship  shall  not 
be  subject  to  condemnation  for  carrying  contraband  goods.  The 
ancient  practice  was  otherwise;  and  it  cannot  be  denied  that  it 
was  perfectly  justifiable  in  principle.  If  to  supply  the  enemy 
with  such  articles  is  a  noxious  act  with  respect  to  the  owner  of 
the  cargo,  the  vehicle  which  is  instrumental  in  effecting  that  il- 
legal purpose,  cannot  be  innocent.  The  policy  of  modern  times 
has,  however,  introduced  a  relaxation  on  this  point;  and  the 
general  rule  now  is,  that  the  vessel  does  not  become  confiscated 
for  that  act.  But  this  rule  is  liable  to  exceptions.  Where  a 
ship  belongs  to  the  owner  of  the  cargo,  or  where  the  ship  is 
going  on  such  service  under  a  false  destination  or  false  papers; 
these  circumstances  of  aggravation  have  been  held  to  constitute 
excepted  cases  out  of  the  modern  rule,  and  to  continue  them 
under  the  ancient  rule. ' '  The  cases  in  which  this  language  was 


692  CONTRABAND. 

used  were  cases  of  capture  upon  the  outward  voyage.  (See  also 
the  Edward,  4  Rob.  R.  68.)  The  same  doctrine  was  afterwards 
held  by  the  same  learned  judge  to  apply  to  cases,  where  the 
vessel  had  sailed  with  false  papers,  and  a  false  destination  upon 
the  outward  voyage,  and  was  captured  on  the  return  voyage. 
(See  the  Nancy,  3  Rob.  122;  the  Christianberg,  6  Rob.  376.) 
And,  finally,  in  the  cases  of  The  Rosalia  and  The  Elizabeth,  in 
1802,  (4  Rob.  R.,  note  to  table  of  cases,)  the  lords  of  appeal  in 
prize  cases  held,  that  the  carriage  of  contraband  outward  with 
false  papers  will  affect  the  return  cargo  with  condemnation. 
These  cases  are  not  reported  at  large.  But  in  the  case  of  the 
Baltic,  1  Acton's  R.  25,  and  that  of  the  Margaret,  1  Acton's  R. 
333,  the  lords  of  appeal  deliberately  reaffirmed  the  same  doc- 
trine. In  the  latter  case  Sir  William  Grant,  in  pronouncing  the 
judgment  of  the  court  said:  "The  principle  upon  which  this 
and  other  prize  courts  have  generally  proceeded  to  adjudication 
in  cases  of  this  nature  (that  is,  where  there  are  false  papers), 
appears  simply  to  be  this ;  that  if  a  vessel  carried  contraband  on 
the  ,outward  voyage,  she  is  liable  to  condemnation  on  the  home- 
ward voyage.  It  is  by  no  means  necessary  that  the  cargo  should 
have  been  purchased  by  the  proceeds  of  this  contraband.  Hence 
we  must  pronounce  against  this  appeal;  the  sentence  (of  con- 
demnation) of  the  court  below  being  perfectly  valid  and  con- 
sistent with  the  acknowledged  principles  of  general  law." 

We  cannot  but  consider  these  decisions  as  very  high  evidence 
of  the  law  of  nations,  as  actually  administered;  and  in  their 
actual  application  to  the  circumstances  of  the  present  case,  they 
are  not,  in  our  judgment,  controlled  by  any  opposing  authority. 
Upon  principle,  too,  we  think,  that  there  is  great  soundness  in 
the  doctrine,  as  a  reasonable  interpretation  of  the  law  of  nations. 
The  belligerent  has  a  right  to  require  a  frank  and  bona  fide  con- 
duct on  the  part  of  neutrals  in  the  course  of  their  commerce  in 
times  of  war ;  and  if  the  latter  will  make  use  of  fraud,  and  false 
papers,  to  elude  the  just  rights  of  the  belligerents,  and  to  cloak 
their,  own  illegal  purposes,  there  is  no  injustice  in  applying  to 
them  the  penalty  of  confiscation.  The  taint  of  the  fraud  travels 
with  the  party  and  his  offending  instrument  during  the  whole 
Course  of  the  voyage,  and  until  the  enterprise  has,  in  the  under- 
standing of  the  party  himself,  completely  terminated.  There 
are  many  analogous  cases  in  the  prize  law,  where  fraud  is  fol- 
lowed by  similar  penalties.  Thus,  if  a  neutral  will  cover  up 
enemy's  property  under  false  papers,  which  also  cover  his  own 


THE  HAKAN.  693 

property,  prize  courts  will  not  disentangle  the  one  from  the 
other,  but  condemn  the  whole  as  good  prize.  That  doctrine  was 
solemnly  affirmed  in  this  court,  in  the  case  of  the  St.  Nicholas, 
1  Wheaton,  417,  3  Cond.  Rep.  614. 

Upon  the  whole,  our  opinion  is,  that  the  general  question  in- 
volved in  the  second  and  third  questions,  whether  there  was  a 
legal  and  justifiable  cause  of  capture  under  the  circumstances  of 
the  present  case,  ought  to  be  answered  in  the  affirmative.  The 
question,  as  to  the  authority  of  the  cruiser  to  seize,  so  far  as  it 
depends  upon  her  commission,  can  only  be  answered  in  a  gen- 
eral way.  If  she  had  a  commission  under  the  royal  authority  of 
Spain,  she  was  beyond  question  entitled  to  make  the  seizure.  If 
Rodil  had  due  authority  to  grant  the  commission,  the  same  re- 
sult would  arise.  If  he  had  no  such  authority,  then  she  must  be 
treated  as  a  non-commissioned  cruiser  entitled  to  seize  for  the 
benefit  of  the  crown;  whose  acts,  if  adopted  and  acknowledged 
by  the  crown  or  its  competent  authorities,  become  equally  bind- 
ing. Nothing  is  better  settled  both  in  England  and  America, 
than  the  doctrine  that  a  non-commissioned  cruiser  may  seize  for 
the  benefit  of  the  government ;  and  if  his  acts  are  adopted  by  the 
government,  the  property,  when  condemned,  becomes  a  droit  of 
the  government.  (The  Amiable  Isabella,  6  Wheat.  Rep.  1,  5 
Cond.  Rep.  1 ;  The  Dos  Hermanos,  10  Wheat.  Rep.  306,  6  Cond. 
Rep.  109;  The  Melomane,  5  Rob.  41;  The  Elsebe,  5  Rob.  174; 
The  Maria  Franchise,  6  Rob.  282.)  .  .  . 


THE  HAKAN. 

JUDICIAL  COMMITTEE  OF  THE  PRIVY  COUNCIL  OF  GREAT  BRITAIN.     1917. 
Law  Reports  [1918]  A.  C.,  148. 

Appeal  from  a  judgment  of  the  President  of  the  Probate,  Di- 
vorce, and  Admiralty  Division  (in  Prize),  .  .  .  [1916]  P.  266. 

The  appellants,  a  Swedish  firm  carrying  on  business  at  Goth- 
enburg, were  the  owners  of  the  steamship  Hakan,'  which  was 
condemned  by  a  judgment  of  the  President  (Sir  Samuel  Evans) 
on  the  ground  that  she  was  captured  while  carrying  a  contra- 
band cargo. 

The  facts  appear  from  the  judgment  of  their  Lordships.    .    .    . 


694  CONTRABAND. 

LORD  PARKER  OP  W  ALDINGTON.  The  Swedish  steamship 
Hakan,  the  subject  of  this  appeal,  was  captured  at  sea  by  II.  M. 
S.  Nonsuch  on  April  4,  1916,  having  sailed  the  same  day  from 
Haugesund  in  Norway  on  a  voyage  to  Liibeck  in  Germany  with 
a  cargo  of  salted  herrings.  Foodstuffs  had  as  early  as  August  4, 
1914,  'been  declared  to  be  conditional  contraband.  The  writ  in 
the  present  proceedings  claimed  condemnation  of  both  ship  and 
cargo,  the  former  on  the  ground  that  it  was  carrying  contraband 
goods  and  the  latter  on  the  ground  that  it  consisted  of  contra- 
band goods. 

It  should  be  observed  that  the  cargo,  being  on  a  neutral  ship, 
was,  even  if  it  belonged  to  enemies,  exempt  from  capture  unless 
it  consisted  of  contraband  goods  (see  the  Declaration  of  Paris). 

The  cargo  owners  did  not  appear  or  make  any  claim  in  the 
action,  although,  according  to  the  usual  practice  of  the  Prize 
Court,  even  enemies  may  appear  and  be  heard  in  defence  of 
their  rights  under  an  international  agreement.  The  question 
whether  the  goods  were  contraband  was,  however,  fully  argued 
by  counsel  for  the  owners  of  the  ship,  a  Swedish  firm  carrying  on 
business  at  Gothenburg.  The  President  condemned  the  cargo 
as  contraband.  He  also  condemned  the  ship  for  carrying  con- 
traband. The  owners  of  the  ship  have  now  appealed  to  His 
Majesty  in  Council.  Under  these  circumstances  the  first  ques- 
tion to  be  decided  is  whether  the  cargo  was  rightly  condemned 
as  contraband,  for  if  it  was  not  there  could  be  no  case  against 
the  ship. 

In  their  Lordships'  opinion,  goods  which  are  conditional  con- 
traband can  be  properly  condemned  whenever  the  Court  is  of 
opinion,  under  all  the  circumstances  brought  to  its  knowledge, 
that  they  were  probably  intended  to  be  applied  for  warlike  pur- 
poses: The  Jonge  Margaretha,  1  C.  Rob.  189.  The  fact  alone 
that  the  goods  in  question  are  on  the  way  to  an  enemy  base  of 
naval  or  military  equipment  or  supply  would  justify  an  infer- 
ence as  to  their  probable  application  for  warlike  purposes.  But 
the  character  of  the  place  of  destination  is  not  the  only  circum- 
stance from  which  this  inference  can  be  drawn.  All  the  known 
facts  have  to  be  taken  into  account.  The  fact  that  the  goods  are 
consigned  to  the  enemy  Government,  and  not  to  a  private  in- 
dividual, would  be  material.  The  same  would  be  the  case  if, 
though  the  goods  are  consigned  to  a  private  individual,  such  in- 
dividual is  in  substance  or  in  fact  the  agent  or  representative  of 
the  enemy  Government. 


THE  HAKAN.  695 

In  the  present  case  Liibeck,  the  port  of  destination  of  the 
goods,  is  undoubtedly  a  port  used  largely  for  the  importation  in- 
to Germany  of  goods  from  Norway  and  Sweden ;  but  it  does  not 
appear  whether  it  is  used  exclusively  or  at  all  as  a  base  of  naval 
or  military  equipment.  On  the  other  hand,  it  is  quite  certain 
that  the  persons  to  whom  the  goods  were  consigned  at  Liibeck 
were  bound  forthwith  to  hand  them  over  to  the  Central  Purchas- 
ing Company,  of  Berlin,  a  company  appointed  by  the  German 
Government  to  act  under  the  direction  of  the  Imperial  Chan- 
cellor for  purposes  connected  with  the  control  of  the  food  sup- 
plies rendered  necessary  by  the  war.  The  proper  inference 
seems  to  be  that  the  goods  in  question  are  in  effect  goods  requisi- 
tioned by  the  Government  for  the  purposes  of  the  war.  It  may 
be  quite  true  that  their  ultimate  application,  had  they  escaped 
capture,  would  have  been  to  feed  civilians,  and  not  the  naval  or 
military  forces  of  Germany;  but  the  general  scarcity  of  food  in 
Germany  had  made  the  victualling  of  the  civil  population  a  war 
problem.  Even  if  the  military  or  naval  forces  of  Germany  are 
never  supplied  with  salted  herrings,  their  rations  of  bread  or 
meat  may  well  be  increased  by  reason  of  the  possibility  of  sup- 
plying salted  herrings  to  the  civil  population.  Under  these 
circumstances,  the  inference  is  almost  irresistible  that  the  goods 
were  intended  to  be  applied  for  warlike  purposes,  and,  this  being 
so,  their  Lordships  are  of  opinion  that  the  goods  were  rightly 
condemned. 

The  second  question  their  Lordships  have  to  determine  relates 
to  the  condemnation  of  the  ship  for  carrying  the  goods  in  ques- 
tion. It  is,  of  course,  quite  clear  that  if  art.  40  of  the  Declaration 
of  London1  be  applicable,  the  ship  was  rightly  condemned,  inas- 
much as  the  whole  cargo  was  contraband.  The  Declaration  of  Lon- 
don has,  however,  no  validity  as  an  international  agreement.  It 
was,  it  is  true,  provided  by  the  Order  in  Council  of  October  29, 
1914,  that  during  the  present  hostilities  its  provisions  should,  with 
certain  very  material  modifications,  be  adopted  and  put  in  force. 
But  the  Prize  Court  cannot,  in  deciding  questions  between  His 
Majesty's  Government  and  neutrals,  act  upon  this  Order  except 
in  so  far  as  the  Declaration  of  London,  as  modified  by  the  Order, 
either  embodies  the  international  law  or  contains  a  waiver  in 
favour  of  neutrals  of  the  strict  rights  of  the  Crown.  It  is  neces- 

i  Art  40 :  "A  vessel  carrying  contraband  may  be  condemned  if  the 
contraband,  reckoned  either  by  value,  weight,  volume,  or  freight,  forms 
more  than  half  the  cargo." 


696  CONTRABAND. 

sary,  therefore,  to  consider  the  international  law  with  regard  to 
the  condemnation  of  a  ship  for  carrying  contraband  apart  from 
the  declaration  of  London. 

It  seems  quite  clear  that  at  one  time  in  our  history  the  mere 
fact  that  a  neutral  ship  was  carrying  contraband  was  considered 
to  justify  its  condemnation,  but  this  rule  was  subsequently  modi- 
fied. Lord  Stowell  deals  with  the  matter  in  The  Neutralitet, 
(1801)  3  C.  Rob.  295.  "The  modern  rule  of  the  law  of  nations 
is,  certainly,"  he  says,  "that  the  ship  shall  not  be  subject  to 
condemnation  for  carrying  contraband  articles.  The  ancient 
practice  was  otherwise;  and  it  cannot  be  denied,  that  it  was 
perfectly  defensible  on  every  principle  of  justice.  If  to  supply 
the  enemy  with  such  articles  is  a  noxious  act  with  respect  to  the 
owner  of  the  cargo,  the  vehicle  which  is  instrumental  in  effecting 
that  illegal  purpose  cannot  be  innocent.  The  policy  of  modern 
times  has,  however,  introduced  a  relaxation  on  this  point;  and 
the  general  rule  now  is,  that  the  vessel  does  not  become  confis- 
cable  for  that  act.  But  this  rule  is  liable  to  exceptions : — where 
a  ship  belongs  to  the  ownec  of  the  cargo,  or  where  the  ship  is 
going  on  such  service,  under  a  false  destination  or  false  papers ; 
these  circumstances  of  aggravation  have  been  held  to  constitute 
excepted  cases  out  of  the  modern  rule,  and  to  continue  them  un- 
der the  ancient  one." 

It  is  to  be  observed  that  Lord  Stowell  does  not  say  that  the 
particular  cases  he  refers  to  are  the  only  exceptions  to  the  mod- 
ern rule.  On  the  contrary,  his  actual  decision  in  The  Neutral- 
itet creates  a  third  exception.  It  should  be  observed,  too,  that 
in  a  later  part  of  his  judgment  he  states  the  reason  for  the 
modification  of  the  ancient  rule  to  be  the  supposition  that 
noxious  or  doubtful  articles  might  be  carried  without  the  per- 
sonal knowledge  of  the  owner  of  the  ship.  He  held  in  the  case 
before  him  that  this  ground  for  the  modification  of  the  rule  en- 
tirely failed,  so  that  the  ancient  rule  applied.  The  reasoning 
is  sound.  For  if  the  ancient  rule  was  modified  because  of  the 
possible  want  of  knowledge  on  the  part  of  the  shipowner,  it  is 
perfectly  logical  to  treat  actual  knowledge  on  the  part  of  the 
shipowner  as  a  good  ground  for  excepting  any  particular  case 
from  the  modern  rule.  Knowledge  will  also  explain  the  two 
main  exceptions  to  which  Lord  Stowell  refers :  If  the  shipowner 
also  owns  the  contraband  cargo,  he  must  have  this  knowledge; 
and  if  he  sails  under  a  false  destination  or  with  false  papers,  it 
is  quite  legitimate  to  infer  this  knowledge  from  his  conduct.  In 


THE  HAKAN.  697 

his  earlier  decision  in  The  Ringende  Jacob  (i?98),  1  C.  Rob.  89, 
Lord  Stowell  had  stated  the  modern  rule  to  be  that  the  carrying 
of  contraband  is  attended  only  with  loss  of  freight  and  expenses, 
except  where  the  ship  belongs  to  the  owner  of  the  contraband 
cargo  or  where  the  simple  misconduct  of  carrying  a  contraband 
cargo  has  been  connected  with  other  malignant  and  aggravating 
circumstances.  If  by  malignant  and  aggravating  circumstances 
Lord  Stowell  meant  only  circumstances  from  which  knowledge 
of  the  character  of  the  cargo  might  be  properly  inferred,  the  rule 
thus  stated  does  not  differ  from  that  laid  down  in  the  subsequent 
case  of  The  Neutralitet.  But  the  words  used  have  by  some 
writers  been  taken  as  indicating  that,  in  Lord  Stowell 's  opinion, 
besides  knowledge  of  the  character  of  the  cargo,  there  must  be 
on  the  part  of  the  shipowner  some  intention  or  conduct  to  which 
the  epithets  "malignant  or  aggravating"  can  be  applied  in  a 
real  as  opposed  to  a  rhetorical  sense.  Any  such  hypothesis 
seems,  however,  to  vitiate  the  reasoning  of  Lord  Stowell  in  The 
Neutralitet.  Sailing  under  a  false  destination  or  false  papers 
may  possibly  be  called  malignant  or  aggravating.  There  is  not 
only  the  knowledge  of  guilt,  but  an  attempt  to  evade  its  conse- 
quences. But  in  the  case  of  the  shipowner  who  also  owns  the 
contraband  on  board  his  ship  it  is  difficult  to  see  where  the 
malignancy  or  aggravation  lies,  if  it  be  not  in  the  knowledge  of 
the  character  of  the  goods  on  board.  If  it  be  malignant  or  ag- 
gravating on  the  part  of  the  owner  of  the  goods  to  consign  them 
to  the  enemy,  it  must  be  equally  malignant  and  aggravating 
on  the  part  of  the  shipowner  knowingly  to  aid  in  the  transaction. 
Nevertheless,  it  was  this  construction  of  Lord  Stowell 's  words 
in  The  Ringende  Jacob  rather  than  the  reasoning  on  which  his 
decision  in  The  Neutralitet  case  was  based  that  was  adopted  by 
the  Supreme  Court  of  the  United  States  in  the  case  of  The 
Bermuda  (1865),  3  Wall.  514,  555.  In  that  case  Chase  C.  J.,  in 
delivering  the  opinion  of  the  Court,  says  as  to  the  relaxation  of 
the  ancient  rule:  "It  is  founded  on  the  presumption  that  the 
contraband  shipment  was  made  without  the  consent  of  the  owner 
givem  in  fraud  of  belligerent  rights,  or,  at  least,  without  intent 
on  his  part  to  take  hostile  part  against  the  country  of  the  cap- 
tors; and  it  must  be  recognized  and  enforced  in  all  cases  where 
that  presumption  is  not  repelled  by  proof.  The  rule,  however, 
requires  good  faith  on  the  part  of  the  neutral,  and  does  not  pro- 
tect the  ship  where  good  faith  is  wanting.  .  .  .  Mere  consent 
to  transportation  of  contraband  will  not  always  or  usually  be 


698  CONTRABAND. 

taken  to  be  a  violation  of  good  faith.  There  must  be  circum- 
stances of  aggravation.  The  nature  of  the  contraband  articles 
and  their  importance  to  the  belligerent,  and  the  general  features 
of  the  transaction,  must  be  taken  into  consideration  in  determin- 
ing whether  the  neutral  owner  intended  or  did  not  intend,  by 
consenting  to  the  transportation,  to  mix  in  the  war." 

Passing  from  the  English  and  American  decisions  to  the  views 
which  were  at  the  commencement  of  the  present  hostilities  enter- 
tained by  the  Prize  Courts  or  jurists  of  other  nations,  we  find 
what  at  first  sight  appears  to  be  considerable  divergence  of  opin- 
ion. If,  however,  the  true  principle  be  that  knowledge  of  the 
character  of  the  cargo  is  a  sufficient  ground  for  depriving  a 
shipowner  of  the  benefit  of  the  modern  rule,  this  divergence  is 
more  apparent  than  real.  It  reduces  itself  to  a  difference  of 
opinion  as  to  the  circumstances  under  which  the  knowledge  may 
be  inferred,  and  if  it  be  remembered  that  knowledge  on  the  part 
of  the  shipowner  of  the  character  of  the  cargo  must  be  largely  a 
matter  of  inference  from  a  great  variety  of  circumstances,  such 
difference  of  opinion  is  readily  intelligible. 

Referring,  for  example,  to  the  view  entertained  in  Holland, 
their  Lordships  find  that,  although  the  ship  is  prima  facie  con- 
fiscable  if  an  important  part  of  the  cargo  be  contraband,  proof 
that  the  master  or  the  charterers  could  not  have  known  the  real 
nature  of  the  cargo  will  secure  the  ship's  release.  In  other 
words,  the  proportion  of  the  contraband  to  the  whole  cargo 
raises  a  presumption  of  knowledge  which  may  be  rebutted. 
Again,  according  to  the  views  held  in  Italy,  the  ship  carrying 
contraband  is  liable  to  confiscation  only  where  the  owner  was 
aware  that  his  vessel  was  intended  to  be  used  for  the  carrying  of 
contraband.  Here  knowledge  is  made  the  determining  factor, 
the  manner  in  which  knowledge  is  to  be  proved  or  inferred  be- 
ing left  to  the  general  law.  Again,  according  to  the  views  enter- 
tained in  Germany,  a  ship  carrying  contraband  can  only  be  con- 
fiscated if  the  owner  or  the  charterer  of  the  whole  ship  or  the 
master  knew  or  ought  to  have  known  that  there  was  contraband 
on  board,  and  if  that  contraband  formed  more  than  a  quarter  of 
the  cargo.  Here  also  knowledge  is  made  the  determining  factor, 
though  there  is  a  concession  to  the  neutral  if  the  proportion  of 
the  contraband  to  the  whole  cargo  be  sufficiently  small.  Once 
mo^e,  in  France  the  test  of  the  right  to  confiscate  is  whether  or 
not  the  contraband  is  three-fourths  in  value  of  the  whole  cargo. 
This  view  may  be  looked  on  as  defining  the  circumstances  in 


THE  HAKAN.  699 

which  an  irrebuttable  inference  of  knowledge  arises.  The  views 
entertained  in  Russia  and  Japan  are  similarly  explicable.  In 
their  Lordships'  opinion  the  principle  underlying  all  these  views 
is  the  same.  There  can  be  no  confiscation  of  the  ship  without 
knowledge  on  the  part  of  the  owner,  or  possibly  of  the  charterer 
or  master,  of  the  nature  of  the  cargo,  but  in  some  cases  the  in- 
ference as  to  knowledge  arising  from  the  extent  to  which  the 
cargo  is  contraband  cannot  be  rebutted,  while  in  others  it  can, 
and  in  some  cases,  even  where  there  is  the  requisite  knowledge, 
the  contraband  must  bear  a  minimum  proportion  to  the  whole 
cargo. 

It  follows  that  the  views  entertained  by  foreign  nations  point 
to  knowledge  of  the  character  of  the  goods  being  alone  sufficient 
for  condemnation  of  a  vessel  for  carrying  contraband;  in  other 
words,  they  support  the  principle  to  be  derived  from  the  reason- 
ing in  The  Neutralitet  rather  than  the  principle  which  has  been 
deduced  from  the  dictum  in  The  Ringende  Jacob  and  developed 
in  The  Bermuda.  It  should  be  observed  that  both  Westlake  and 
Hall  agree  that  knowledge  is  alone  sufficient  to  justify  confisca- 
tion: see  Westlake,  International  Law  (War),  2nd  ed.,  p.  291; 
Hall,  International  Law,  6th  ed.,  p.  666. 

Their  Lordships  consider  that  in  this  state  of  the  authorities 
they  ought  to  hold  that  knowledge  of  the  character  of  the  goods 
on  the  part  of  the  owner  of  the  ship  is  sufficient  to  justify  the 
condemnation  of  the  ship — at  any  rate,  where  the  goods  in  ques- 
tion constitute  a  substantial  part  of  the  whole  cargo. 

In  the  light  of  what  has  been  said  as  to  the  rule  of  interna- 
tional law  their  Lordships  will  now  proceed  to  consider  the 
special  facts  of  this  case.  The  owners  of  the  ship  are  a  Swedish 
firm  carrying  on  business  at  Gothenburg.  On  January  8,  1916, 
they  chartered  the  ship  to  a  German  firm  of  fish  dealers  for  a 
period  of  six  weeks  from  the  time  when  the  vessel  was  placed  at 
charterers'  disposal,  with  power  for  the  charterers  to  prolong 
this  period  up  to  May  16,  1916.  The  voyages  undertaken  by  the 
charterers  were  to  be  from  Scandinavian  to  German  Baltic  ports. 
It  must  have  been  quite  evident  to  the  owners  that  the  ship 
would  be  used  for  the  importation  of  fish  into  Germany.  They 
must  also  have  known  that  foodstuffs  were  conditional  contra- 
band. It  is  almost  inconceivable  that  they  did  not  also  know  of 
the  food  difficulties  in  Germany  and  of  the  manner  in  which  the 
German  Government  had  in  effect  requisitioned  salted  herrings 
to  meet  the  exigencies  of  the  war,  They  had  an  opportunity 


700  CONTRABAND'. 

in  the  Court  below  of  establishing  their  want  of  knowledge  if  it 
existed,  but  they  did  not  attempt  to  do  so.  The  inference  that 
they  did  in  fact  know  that  the  vessel  would  be  used  for  the  pur- 
pose for  which  it  was  used  is  irresistible.  If  knowledge  of  the 
character  of  the  goods  be  the  true  criterion  as  to  confiscability, 
the  vessel  was  rightly  condemned. 

Even  on  the  hypothesis  that  something  beyond  mere  knowl- 
edge of  the  character  of  the  cargo  is  required,  something  which 
may  be  called  ' '  malignant  or  aggravating ' '  within  the  principles 
of  The  Ringende  Jacob  or  The  Bermuda  decisions,  that  some- 
thing clearly  exists  in  the  present  case.  A  shipowner  who  lets 
his  ship  on  time  charter  to  an  enemy  dealer  in  conditional  con- 
traband for  the  purposes  of  this  trade  at  a  time  when  the  con- 
ditional contraband  is  vitally  necessary  to  and  has  been  requisi- 
tioned by  the  enemy  Government  for  the  purpose  of  the  war  is, 
'in  their  Lordships'  opinion,  deliberately  "taking  hostile  part 
against  the  country  of  the  captors"  and  "mixing  in  the  war" 
within  the  meaning  of  those  expressions  as  used  by  Chase  C.  J. 
in  The  Bermuda. 

In  their  Lordships'  opinion,  the  appeal  fails  and  should  be 
dismissed  with  costs. 

NOTE. — The  penalties  for  engaging  in  contraband  traffic  vary  with 
the  relationship  between  the  cargo  and  the  vessel  in  which  it  is 
found.  In  no  case  however  do  they  extend  beyond  the  total  loss  of 
both  goods  and  vessel.  If  the  two  are  the  property  of  the  same  owner, 
both  may  be  confiscated,  The  Staadt  Embden  (1798),  1  C.  Robinson, 
26.  If  the  two  are  the  property  of  different  owners,  usually  the  cargo 
alone  is  confiscated,  while  the  vessel  itself  is  only  seized  and  de- 
tained and  its  loss  is  confined  to  freight,  The  Ringende  Jacob  (1798), 
1  C.  Robinson,  90;  The  Sarah  Christina  (1799),  1  Ib.  237;  The 
Eenrom  (1799),  2  Ib.  1;  The  Bermuda  (1866),  3  Wallace,  514.  But 
the  utmost  good  faith  is  required  and  any  deception,  The  Jonge  To- 
bias (1799),  1  C.  Robinson,  329;  The  Franklin  (1801),  3  Ib.  217;  The 
Carolina  (1802),  4  Ib.  256;  The  Ranger  (1805),  6  Ib.  125;  The 
Schooner  Betsey  and  Polly  (1902),  38  Ct.  Cl.  30;  The  Bawtry  (1904), 
Takahashi,  659,  or  spoliation  of  documents,  The  Johanna  Emilie 
(1854),  Spinks,  317;  The  Ophelia  (1915),  L.  R.  [1915]  P.  129,  may 
lead  to  the  confiscation  of  the  vessel.  Takahashi  reports  nine  cases 
in  which  the  Japanese  Prize  Courts  condemned  vessels  for  thq 
carriage  of  contraband.  In  many  of  them  the  court  adopts  the 
eighteenth-century  principle  that  the  mere  carriage  of  contraband  ex- 
poses the  vessel  to  condemnation.  An  examination  of  the  facts 
however  shows  that  in  each  case  the  vessel  concerned  had  practiced 
some  form  of  deception,  and  the  sentence  may  be  sustained  on  that 
ground.  See  Takahashi,  651-709.  A  vessel's  liability  to  seizure  for 


NOTE.  701 

the  carriage  of  contraband  usually  terminates  with  the  deposit  of  the 
contraband  cargo,  The  Frederick  Molke  (1798),  1  C.  Robinson,  86; 
The  Sloop  Ralph  (1904),  39  Ct.  Cl.  204,  unless  the  voyage  has  been 
accomplished  by  means  of  false  or  simulated  papers,  The  Nancy 
(1800),  3  C.  Robinson,  122;  The  Lucy  (1904),  39  Ct.  Cl.  221;  The 
Betsey  (1904),  39  Ib.  452;  The  Alwina  (1916),  L.  R.  [1916]  P.  131, 
when,  on  the  return  voyage,  both  the  ship  and  the  cargo  purchased 
with  the  proceeds  of  the  contraband  cargo  were  held  liable  to  capture. 
On  the  penalty  for  carrying  contraband,  see  The  Hakan  (1916),  L.  R. 
[1916]  P.  266,  where  the  authorities  are  fully  reviewed;  The  Maracaibo 
(1916),  2  Br.  &  Col.  P.  C.  294;  The  Hillerod  (1917),  L.  R.  [1918]  A.  C. 
412;  Pyke,  The  Law  of  Contraband  of  War,  ch.  xvi;  Cobbett,  Cases 
and  Opinions,  II,  430;  Hyde,  II,  629;  Moore,  Digest,  VII,  744. 

In  the  Sarah  Christina  (1799),  1  C.  Robinson,  237,  241,  which  was 
the  case  of  a  Swedish  ship  carrying  pitch  and  tar  to  France,  Lord 
Stowell  said: 

In  the  practice  of  this  Court  there  is  a  relaxation,  which  al- 
lows the  carrying  of  these  articles,  being  the  produce  of  the 
claimant's  country;  as  it  has  been  deemed  a  harsh  exercise  of 
a  belligerent  right,  to  prohibit  the  carriage  of  these  articles, 
which  constitute  so  considerable  a  part  of  its  native  produce 
and  ordinary  commerce. — But  in  the  same  practice,  this  re- 
laxation is  understood  with  a  condition,  that  it  may  be  brought 
in,  not  for  confiscation,  but  for  preemption — no  unfair  com- 
promise, as  it  should  seem,  between  the  belligerent's  rights, 
founded  on  the  necessities  of  self-defence,  and  the  claims  of 
the  neutral  to  export  his  native  commodities,  though  immedi- 
ately subservient  to  the  purposes  of  hostility. — To  entitle  the 
party  to  the  benefit  of  this  rule,  a  perfect  bona  fides  on  his 
part  is  required. 

See  also  The  Edward  (1801),  4  C.  Robinson,  68.  In  the  Great  War 
of  1914-1918,  Great  Britain  freely  applied  the  milder  practice  of  pre- 
emption and  paid  for  many  cargoes  which  the  strict  law  would  have 
justified  her  in  confiscating.  See  Phillipson,  International  Law  and  the 
Great  War,  338;  Pyke,  The  Law  of  Contraband  of  War,  224. 


CHAPTER  XIX. 

EETALIATORY  MEASURES. 

THE  FOX  AND  OTHERS. 

HIGH  COURT  OF  ADMIRALTY  OF  ENGLAND.     1811. 
Edwards,  311. 

SIR  WILLIAM  SCOTT  [LORD  STOWELL]. — This  was  the  case  of 
an  American  vessel  which  was  taken  on  the  15th  November, 
1810,  on  a  voyage  from  Boston  to  Cherbourg.  It  is  contended, 
on  the  part  of  the  captors,  that,  under  the  order  in  council  of 
26th  April,  1809,  this  ship  and  cargo,  being  destined  to  a  port 
of  France,  are  liable  to  confiscation.  On  the  part  of  the  claim- 
ants it  has  been  replied,  that  the  ship  and  cargo  are  not  confis- 
cable  under  the  orders  in  council;  first,  because  these  orders 
have  in  fact  become  extinct,  being  professedly  founded  upon 
measures  which  the  enemy  had  retracted ;  and  secondly,  that  if 
the  orders  in  council  are  to  be  considered  as  existing,  there  are 
circumstances  of  equity  in  the  present  case,  and  in  the  others 
that  follow,  which  ought  to  induce  the  court  to  hold  them  ex- 
onerated from  the  penal  effect  of  these  orders. 

In  the  course  of  the  discussion  a  question  has  been  started, 
what  would  be  the  duty  of  the  court  under  orders  in  council  that 
were  repugnant  to  the  law  of  nations?  It  has  been  contended 
on  one  side,  that  the  court  would  at  all  events  be  bound  to  en- 
force the  orders  in  council :  on  the  other,  that  the  court  would 
be  bound  to  apply  the  rule  of  the  law  of  nations  adapted  to  the 
particular  case,  in  disregard  of  the  orders  in  council.  I  have 
not  observed,  however,  that  these  orders  in  council,  in  their  re- 
taliatory character,  have  been  described  in  the  argument  as  at 
all  repugnant  to  the  law  of  nations,  however  liable  to  be  so  de- 
scribed if  merely  original  and  abstract.  And  therefore  it  is 
rather  to  correct  possible  misapprehension  on  the  subject  than 
from  the  sense  of  any  obligation  which  the  present  discussion  im- 
poses upon  me,  that  I  observe  that  this  court  is  bound  to  ad- 

702 


THE  FOX.  703 

minister  the  law  of  nations  to  the  subjects  of  other  countries  in 
the  different  relations  in  which  they  may  be  placed  towards 
this  country  and  its  government.  This  is  what  other  countries 
have  a  right  to  demand  for  their  subjects,  and  to  complain  if 
they  receive  it  not.  This  is  its  unwritten  law,  evidenced  in  the 
course  of  its  decisions,  and  collected  from  the  common  usage  of 
civilized  states.  At  the  same  time  it  is  strictly  true,  that  by  the 
constitution  of  this  country,  the  king  in  council  possesses  legis- 
lative rights  over  this  court,  and  has  power  to  issue  orders  and 
instructions  which  it  is  bound  to  obey  and  enforce ;  and  these 
constitute  the  written  law  of  this  court.  These  two  propositions, 
that  the  court  is  bound  to  administer  the  law  of  nations,  and 
that  it  is  bound  to  enforce  the  king's  orders  in  council,  are  not 
at  all  inconsistent  with  each  other;  because  these  orders  and 
instructions  are  presumed  to  conform  themselves,  under  the 
given  circumstances,  to  the  principles  of  its  unwritten  law. 
They  are  either  directory  applications  of  those  principles  to  the 
cases  indicated  in  them — ^ases  which,  with  all  the  facts  and  cir- 
cumstances belonging  to  them,  and  which  constitute  their  legal 
character,  could  be  but  imperfectly  known  to  the  court  itself; 
or  they  are  positive  regulations,  consistent  with  those  principles, 
applying  to  matters  which  require  more  exact  and  definite  rules 
than  those  general  principles  are  capable  of  furnishing. 

The  constitution  of  this  court,  relatively  to  the  legislative 
power  of  the  king  in  council,  is  analogous  to  that  of  the  courts 
of  common  law,  relatively  to  that  of  the  parliament  of  this  king- 
dom. Those  courts  have  their  unwritten  law,  the  approved  prin- 
ciples of  natural  reason  and  justice — they,  have  likewise  the 
written  or  statute  law  in  acts  of  parliament,  which  are  directory 
applications  of  the  same  principles  to  particular  subjects,  or 
positive  regulations  consistent  with  them,  upon  matters  which 
would  remain  too  much  at  large  if  they  were  left  to  the  imper- 
fect information  which  the  courts  could  extract  from  mere  gen- 
eral speculations.  What  would  be  the  duty  of  the  individuals 
who  preside  in  those  courts  if  required  to  enforce  an  act  of 
parliament  which  contradicted  those  principles,  is  a  question 
which  I  presume  they  would  not  entertain  a  priori,  because  they 
will  not  entertain  a  priori  the  supposition  that  any  such  will 
arise.  In  like  manner  this  court  will  not  let  itself  loose  into 
speculations  as  to  what  would  be  its  duty  under  such  an  emer- 
gency, because  it  cannot,  without  extreme  indecency,  presume 
that  any  such  emergency  will  happen ;  and  it  is  the  less  disposed 


704  RETALIATORY  MEASURES. 

to  entertain  them,  because  its  own  observation  and  experience 
attest  the  general  conformity  of  such  orders  and  instructions  to 
its  principles  of  unwritten  law. — In  the  particular  case  of  the 
orders  and  instructions  which  give  rise  to  the  present  question, 
the  court  has  not  heard  it  at  all  maintained  in  argument,  that 
as  retaliatory  orders  they  are  not  conformable  to  such  prin- 
ciples— for  retaliatory  orders  they  are. — They  are  so  declared  in 
their  own  language,  and  in  the  uniform  language  of  the  govern- 
ment which  has  established  them.  I  have  no  hesitation  in  say- 
ing that  they  would  cease  to  be  just  if  they  ceased  to  be  retalia- 
tory; and  they  would  cease  to  be  retaliatory,  from  the  moment 
the  enemy  retracts,  in  a  sincere  manner,  those  measures  of  his 
which  they  were  intended  to  retaliate. 

The  first  question  is,  what  is  the  proper  evidence  for  this 
court  to  receive,  under  all  the  circumstances  that  belong  to  the 
case,  in  proof  of  the  fact  that  he  has  made  a  bona  fide  retracta- 
tion of  those  measures.  Upon  that  point  it  appears  to  me  that 
the  proper  evidence  for  the  court  to  receive,  is  the  declaration  of 
the  state  itself,  which  issued  these  retaliatory  orders,  that  it  re- 
vokes them  in  consequence  of  such  a  change  having  taken  place 
in  the  conduct  of  the  enemy.  When  the  state,  in  consequence  of 
gross  outrages  upon  the  law  of  nations  committed  by  its  ad- 
versary, was  compelled  by  a  necessity  which  it  laments,  to  re- 
sort to  measures  which  it  otherwise  condemns,  it  pledges  itself 
to  the  revocation  of  those  measures  as  soon  as  the  necessity 
ceases. — And  till  the  state  revokes  them,  this  court  is  bound  to 
presume  that  the  necessity  continues  to  exist.  It  cannot  without 
extreme  indecency  suppose  that  they  would  continue  a  moment 
longer  than  the  necessity  which  produced  them,  or  that  the 
notification  that  such  measures  were  revoked,  would  be  less 
public  and  formal  than  their  first  establishment.  Their  estab- 
lishment was  doubtless  a  great  and  signal  departure  from  the 
ordinary  administration  of  justice  in  the  ordinary  state  of  the 
exercise  of  public  hostility,  but  was  justified  by  that  extraordi- 
nary deviation  from  the  common  exercise  of  hostility  in  the  con- 
duct of  the  enemy.  It  would  not  have  been  within  the  compe- 
tency of  the  court  itself  to  have  applied  originally  such  rules, 
because  it  was  hardly  possible  for  this  court  to  possess  that  dis- 
tinct and  certain  information  of  the  facts  to  which  alone  such 
extraordinary  rules  were  justly  applicable.  It  waited,  there- 
fore, for  the  communication  of  the  facts :  it  waited  likewise  for 
the  promulgation  of  the  rules  that  were  to  be  practically  ap- 


THE  FOX.  705 

plied;  for  the  state  might  not  have  thought  fit  to  act  up  to  the 
extremity  of  its  rights  on  this  extraordinary  occasion.  It  might, 
from  motives  of  forbearance,  or  even  of  policy,  unmixed  with 
any  injustice  to  other  states,  have  adopted  a  more  indulgent  rule 
than  the  law  of  nations  would  authorize,  though  it  is  not  at 
liberty  ever  to  apply  a  harsher  rule  than  that  law  warrants. 
In  the  case  of  the  Swedish  convoy,  which  has  been  alluded  to, 
no  order  or  instruction  whatever  was  issued,  and  the  court, 
therefore,  was  left  to  find  its  way  to  that  legal  conclusion  which 
its  judgment  of  the  principles  of  the  law  led  it  to  adopt.  But 
certainly  if  the  state  had  issued  an  order  that  a  rule  of  less 
severity  should  be  applied,  this  court  would  not  have  considered 
it  as  any  departure  from  its  duty  to  act  upon  the  milder  rule 
which  the  prudence  of  the  state  was  content  to  substitute  in  sup- 
port of  its  own  rights.  In  the  present  case  it  waited  for  the 
communication  of  the  fact  and  the  promulgation  of  the  rule.  It 
is  its  duty  in  like  manner  to  wait  for  the  notification  of  the  fact 
that  these  orders  are  revoked  in  consequence  of  a  change  in  the 
conduct  of  the  enemy. 

The  edicts  of  the  enemy  themselves,  obscure  and  ambiguous 
in  their  usual  language,  and  most  notoriously  and  frequently 
contradicted  by  his  practice,  would  hardly  afford  it  a  satisfac- 
tory evidence  of  any  such  change  having  actually  and  sincerely 
taken  place.  The  state  has  pledged  itself  to  make  such  a  notifica- 
tion when  the  fact  happens :  it  is  pledged  so  to  do  by  its  public 
declarations — by  its  acknowledged  interpretations  of  the  law  of 
nations — by  every  act  which  can  excite  a  universal  expectation 
and  demand,  that  it  shall  redeem  such  a  pledge.  Is  such  an  ex- 
pectation peculiar  to  this  court?  most  unquestionably  not.  It  is 
universally  felt  and  universally  expressed.  What  are  the  ex- 
pectations signified  by  the  American  government  in  the  public 
correspondence  referred  to  ?  not  that  these  orders  would  become 
silently  extinct  under  the  interpretations  of  this  court,  but  that 
the  state  would  rescind  and  revoke  them.  What  is  the  expecta- 
tion expressed  in  the  numerous  private  letters  exhibited  to  the 
court  amongst  the  papers  found  on  board  this  class  of  vessels? 
not  that  the  British  orders  had  expired  of  themselves,  but  that 
they  would  be  removed  and  repealed  by  public  authority.  If  I 
took  upon  myself  to  annihilate  them  by  interpretation,  I  should 
act  in  opposition  to  the  apprehension  and  judgment  of  all  par- 
ties concerned — of  the  individuals  whose  property  is  in  ques- 
47 


706  RETALIATORY  MEASURES. 

tion,  and  of  the  American  government  itself,  which  is  bound  to 
protect  them.    .    .    . 

It  is  incumbent  upon  me,  I  think,  to  take  notice  of  an  objec- 
tion of  Dr.  Herbert 's,  to  the  existence  of  the  orders  in  council — 
namely,  that  British  subjects  are,  notwithstanding,  permitted  to 
trade  with  France,  and  that  a  blockade  which  excludes  the  sub- 
jects of  all  other  countries  from  trading  with  ports  of  the  enemy, 
and  at  the  same  time  permits  any  access  to  those  ports  to  the 
subjects  of  the  state  which  imposes  it,  is  irregular,  illegal,  and 
null.  And  I  agree  to  the  position,  that  a  blockade,  imposed  for 
the  purpose  of  obtaining  a  commercial  monopoly  for  the  private 
advantage  of  the  state  which  lays  on  such  blockade,  is  illegal  and 
void  on  the  very  principle  upon  which  it  is  founded.  But,  in 
the  first  place,  (though  that  is  matter  of  inferior  consideration,) 
I  am  not  aware  that  any  such  trade  between  the  subjects  of  this 
country  and  France  is  generally  permitted.  Licenses  have  been 
granted  certainly  in  no  inconsiderable  numbers;  but  it  never 
has  been  argued  that  particular  licenses  would  vitiate  a  block- 
ade. If  it  were  material  in  the  present  case,  it  might  be  ob- 
served, that  many  more  of  these  licenses  had  been  granted  to 
foreign  ships  than  to  British  ships,  to  go  from  this  country  to 
France  and  to  return  here  from  thence  with  cargoes.  But,  sec- 
ondly, what  still  more  clearly  and  generally  takes  this  matter 
out  of  the  reach  of  the  objection,  is  the  particular  nature  and 
character  of  this  blockade  of  France,  if  it  is  so  to  be  character- 
ized. It  is  not  an  original,  independent  act  of  blockade,  to  be 
governed  by  the  common  rules  that  belong  simply  to  that  opera- 
tion of  war.  It  is  in  this  instance  a  counteracting,  reflex  meas- 
ure, compelled  by  the  act  of  the  enemy,  and  as  such  subject  to 
other  considerations  arising  out  of  its  peculiarly  distinctive 
character.  France  declared  that  the  subjects  of  other  states 
should  have  no  access  to  England;  England,  on  that  account, 
declared  that  the  subjects  of  other  states  should  have  no  access 
to  France.  So  far  this  retaliatory  blockade  (if  blockade  it  is  to 
be  called)  is  coextensive  with  the  principle :  neutrals  are  pro- 
hibited to  trade  with  France,  because  they  are  prohibited  by 
France  from  trading  with  England.  England  acquires  the 
right,  which  it  would  not  otherwise  possess,  to  prohibit  that  in- 
tercourse, by  virtue  of  the  act  of  France.  Having  so  acquired 
it,  it  exercises  it  to  its  full  extent,  with  entire  competence  of  legal 
authority:  and  having  so  done,  it  is  not  for  other  countries  to 
inquire  how  far  this  country  may  be  able  to  relieve  itself  fur- 


NOTE.  707 

ther  from  the  aggressions  of  that  enemy.  The  case  is  settled 
between  them  and  itself  by  the  principle  on  which  the  inter- 
course is  prohibited.  If  the  convenience  of  this  country  before 
this  prohibition  required  some  occasional  intercourse  with  the 
enemy,  no  justice  that  is  due  to  other  countries  requires  that 
such  an  intercourse  should  be  suspended  on  account  of  any  pro- 
hibition imposed  upon  them  on  a  ground  so  totally  unconnected 
with  the  ordinary  principles  ofi  a  common  measure  of  blockade, 
from  which  it  is  thus  distinguished  by  its  retaliatory  character. 

Things  standing  as  they  do  before  me — all  the  parties  having 
acted  in  a  manner  that  leads  necessarily  to  the  conclusion  that 
no  bona  fide  revocation  of  the  Berlin  and  Milan  decrees  has 
taken  place,  I  must  consider  these  cases  as  falling  within  the 
range  of  the  British  orders  in  council,  and  as  such  they  are 
liable  to  condemnation. 

NOTE. — In  The  Snipe  and  Others  (1812),  Edwards,  380,  Lord  Stowell 
again  considered  the  retaliatory  Orders  in  Council,  and  in  the  course 
of  his  opinion  he  said: 

It  is  matter  of  universal  notoriety  that  the  French  ruler 
published,  in  November,  1806,  a  Decree  dated  at  Berlin  (from 
whence  it  usually  takes  its  title,)  by  which  he  declared  the 
British  Isles  to  be  in  a  state  of  blockade. — That  the  British 
Government,  in  January  and  November,  1807,  published  Orders 
of  Blockade,  the  former  prohibiting  the  trade  of  neutrals  be- 
tween ports  from  which  the  British  flag  was  excluded — the 
latter  imposing  a  total  blockade  of  those  ports.  These  orders 
were  intended  and  professed  to  be  retaliatory  against  France; 
without  reference  to  that  character,  they  have  not,  and  would 
not  have  been  defended;  but  in  that  character  they  have  been 
justly,  in  my  apprehension,  deemed  reconcilable  with  those 
rules  of  natural  justice,  by  which  the  international  communi- 
cation of  independent  states  is  usually  governed. 


708  RETALIATORY  MEASURES. 

THE  STIGSTAD. 

JUDICIAL  COMMITTEE  OF  THE  PRIVY  COUNCIL  OF  GREAT  BRITAIN.     1918. 
Law  Reports   [1919]  A.  C.  279. 

Appeal  from  a  judgment  of  the  President  of  the  Admiralty 
Division  (in  Prize),  [1916]  P.  123. 

[In  retaliation  for  measures  taken  by  the  German  Govern- 
ment, the  British  Government,  on  March  11,  1915,  issued  an 
Order  in  Council  providing  that  every  merchant  ship  on  its 
way  to  a  port  other  than  a  German  port  and  carrying  goods 
with  an  enemy  destination  might  be  required  to  discharge  the 
goods  at  a  British  port.  No  provision  was  made  for  compensa- 
tion. The  Stigstad,  a  Norwegian  vessel  bound  from  a  Nor- 
wegian port  to  Rotterdam  with  iron-ore  briquettes  belonging  to 
neutrals  but  destined  for  Germany,  was  stopped  and  required 
to  discharge  at  a  British  port.  The  claimants  put  in  a  claim 
for  freight,  detention  and  expenses  consequent  upon  the  seizure 
and  discharge.  The  President,  Sir  Samuel  Evans,  allowed  the 
freight  but  dismissed  the  claims  for  detention  and  special  ex- 
penses. The  claimants  appealed.] 

LORD  SUMNER.  .  .  .  With  the  fullest  recognition  of  the 
rights  of  neutral  ships,  it  is  impossible  to  say  that  owners  of 
such  ships  can  claim  damages  from  a  belligerent  for  putting 
into  force  such  an  Order  in  Council  as  that  of  March  11,  1915, 
if  the  Order  be  valid.  The  neutral  exercising  his  trading  rights 
on  the  high  seas  and  the  belligerent  exercising  on  the  high  seas 
rights  given  him  by  Order  in  Council  or  equivalent  procedure, 
are  each  in  the  enjoyment  and  exercise  of  equal  rights;  and, 
without  an  express  provision  in  the  Order  to  that  effect,  the 
belligerent  does  not  exercise  his  rights  subject  to  any  over- 
riding rights  in  the  neutral.  The  claimants'  real  contention  is, 
and  is  only,  that  the  Order  in  Council  is  contrary  to  interna- 
tional law,  and  is  invalid. 

Upon  this  subject  two  passages  in  The  Zamora,  [1916]  2  A.  C. 
77,  95,  98,  are  in  point.  The  first  is  at  p.  95.  and  relates  to  Sir 
William  Scott's  decision  in  The  Fox,  Edw.  311.  "The  decdsion 
proceeded  upon  the  principle  that,  where  there  is  just  cause  for 
retaliation,  neutrals  may  by  the  law  of  nations  be  required  to 
submit  to  inconvenience  from  the  act  of  a  belligerent  power 


THE  STIGSTAD.  709 

greater  in  degree  than  would  be  justified  had  no  just  cause  for 
retaliation  arisen,  a  principle  which  had  been  already  laid  down 
in  The  Lucy,  (1809)  Edw.  122." 

Further,  at  p.  98,  are  the  words  "An  order  authorising  re- 
prisals will  be  conclusive  as  to  the  facts  which  are  recited  as 
showing  that  a  case  for  reprisals  exists,  and  will  have  due  weight 
as  showing  what,  in  the  opinion  of  His  Majesty's  advisers,  are 
the  best  or  only  means  of  meeting  the  emergency;  but  this  will 
not  preclude  the  right  of  any  party  aggrieved  to  contend,  or  the 
right  of  the  Court  to  hold,  that  these  means  are  unlawful,  as 
entailing  on  neutrals  a  degree  of  inconvenience  unreasonable, 
considering  all  the  circumstances  of  the  case."  .  .  . 

What  is  here  in  question  is  not  the  right  of  the  belligerent 
to  retaliate  upon  his  enemy  the  same  measure  as  has  been  meted 
out  to  him,  or  the  propriety  of  justifying  in  one  belligerent  some 
departure  from  the  regular  rules  of  war  on  the  ground  of  neces- 
sity arising  from  prior  departures  on  the  part  of  the  other,  but 
it  is  the  claim  of  neutrals  to  be  saved  harmless  under  such  cir- 
cumstances from  inconvenience  or  damage  thereout  arising.  If 
the  statement  above  quoted  from  The  Zamora  be  correct,  the  re- 
citals in  the  Order  in  Council  sufficiently  establish  the  existence 
of  such  breaches  of  law  on  the  part  of  the  German  Government 
as  justify  retaliatory  measures  on  the  part  of  His  Majesty,  and, 
if  so,  the  only  question  open  to  the  neutral  claimant  for  the 
purpose  of  invalidating  the  Order  is  whether  or  not  it  subjects 
neutrals  to  more  inconvenience  or  prejudice  than  is  reasonably 
necessary  under  the  circumstances. 

Their  Lordships  think  that  such  a  rule  is  sound,  and  indeed 
inevitable.  From  the  nature  of  the  case  the  party  who  knows 
best  whether  or  not  there  has  been  misconduct  calling  such  a 
principle  into  operation,  is  a  party  who  is  not  before  the  Court, 
namely,  the  enemy  himself.  The  neutral  claimant  can  hardly 
have  much  information  about  it,  and  certainly  cannot  be  ex- 
pected to  prove  or  disprove  it.  His  Majesty's  Government,  also 
well  aware  of  the  facts,  has  already,  by  the  fact  as  well  as  by 
the  recitals  of  the  Order  in  Council,  solemnly  declared  the  sub- 
stance and  effect  of  that  knowledge,  and  an  independent  inquiry 
into  the  course  of  contemporary  events,  both  naval  and  military, 
is  one  which  a  Court  of  Prize  is  but  ill-qualified  to  undertake  for 
itself.  Still  less  would  it  be  proper  for  such  a  Court  to  inquire 
into  the  reasons  of  policy,  military  or  other,  which  have  been 
the  cause  and  are  to  be  the  justification  for  resorting  to  retalia- 


710  RETALIATORY  MEASURES. 

tion  for  that  misconduct.  Its  function  is,  in  protection  of  the 
rights  of  neutrals,  to  weigh  on  a  proper  occasion  the  measures 
of  retaliation  which  have  been  adopted  in  fact,  and  to  inquire 
whether  they  are  in  their  nature  or  extent  other  than  commen- 
surate with  the  prior  wrong  done,  and  whether  they  inflict  on 
neutrals,  when  they  are  looked  at  as  a  whole,  inconvenience 
greater  than  is  reasonable  under  all  the  circumstances.  It  fol- 
lows that  a  Court  of  Prize,  while  bound  to  ascertain,  from  the 
terms  of  the  Order  itself,  the  origin  and  the  occasion  of  the 
retaliatory  measures  for  the  purpose  of  weighing  those  measures 
with  justice  as  they  affect  neutrals,  nevertheless  ought  not  to 
question,  still  less  to  dispute,  that  the  warrant  for  passing  the 
Order,  which  is  set  out  in  its  recitals,  has  in  truth  arisen  in 
the  manner  therein  stated.  Although  the  scope  of  this  inquiry  is 
thus  limited  in  law,  in  fact  their  Lordships  cannot  be  blind  to 
what  is  notorious  to  all  the  world  and  is  in  the  recollection  of 
all  men,  the  outrage  namely  committed  by  the  enemy,  upon  law, 
humanity,  and  the  rights,  alike  of  belligerents  and  neutrals, 
which  led  to,  and  indeed  compelled,  the  adoption  of  some  such 
policy  as  is  embodied  in  this  Order  in  Council.  In  considering 
whether  more  inconvenience  is  inflicted  upon  neutrals  than  the 
circumstances  involve,  the  frequency  and  the  enormity  of  the 
original  wrongs  are  alike  material,  for  the  more  gross  and  uni- 
versal those  wrongs  are,  the  more  are  all  nations  concerned  in 
their  repression,  and  bound  for  their  part  to  submit  to  such 
sacrifices  as  that  repression  involves.  It  is  right  to  recall  that, 
as  neutral  commerce  suffered  and  was  doomed  to  suffer  gross 
prejudice  from  the  illegal  policy  proclaimed  and  acted  on  by 
the  German  Government,  so  it  profited  by,  and  obtained  relief 
from,  retaliatory  measures,  if  effective  to  restrain,  to  punish  and 
to  bring  to  an  end  such  injurious  conduct.  Neutrals,  whose 
principles  or  policy  lead  them  to  refrain  from  punitory  or  re- 
pressive action  of  their  own,  may  well  be  called  on  to  bear  a 
passive  part  in  the  necessary  suppression  of  courses  which  are 
fatal  to  the  freedom  of  all  who  use  the  seas. 

The  argument  principally  urged  at  the  bar  ignored  these  con- 
siderations, and  assumed  an  absolute  right  in  neutral  trade  to 
proceed  without  interference  or  restriction,  unless  by  the  ap- 
plication of  the  rules  heretofore  established  as  to  contraband 
traffic,  unneutral  service  and  blockade.  The  assumption  was 
that  a  neutral,  too  pacific  or  too  impotent  to  resent  the  aggres- 
sions and  lawlessness  of  one  belligerent,  can  require  the  other  to 


THE  STIGSTAD.  711 

refrain  from  his  most  effective,  or  his  only,  defence  against  it, 
by  the  assertion  of  an  absolute  inviolability  for  his  own  neutral 
trade,  which  would  thereby  become  engaged  in  a  passive  com- 
plicity with  the  original  offender.  For  this  contention  no  au- 
thority at  all  was  forthcoming.  Reference  was  made  to  the 
Orders  in  Council  of  1806  to  1812,  which  were  framed  by  way  of 
retaliation  for  the  Berlin  and  Milan  decrees.  There  has  been 
much  discussion  of  these  celebrated  instruments  on  one  side  or 
the  other,  though  singularly  little  in  decided  cases  or  in  treatises 
of  repute ;  and,  according  to  their  nationality  or  their  partisan- 
ship, writers  have  denounced  the  one  policy  or  the  other,  or  have 
asserted  their  own  superiority  by  an  impartial  censure  of  both. 
The  present  Order,  however,  does  not  involve  for  its  justifica- 
tion a  defence  of  the  very  terms  of  those  Orders  in  Council.  It 
must  be  judged  on  its  merits  and,  if  the  principle  is  advanced 
against  it  that  such  retaliation  is  wrong  in  kind,  no  foundation 
in  authority  has  been  found  on  which  to  rest  it.  Nor  is  the  prin- 
ciple itself  sound.  The  seas  are  the  highway  of  all,  and  it  is 
incidental  to  the  very  nature  of  maritime  war  that  neutrals,  in 
using  that  highway,  may  suffer  inconvenience  from  the  exercise 
of  their  concurrent  rights  by  those  who  have  to  wage  war  upon 
it.  Of  this  fundamental  fact  the  right  of  blockade  is  only  an 
example.  It  is  true  that  contraband,  blockade,  and  unneutral 
service  are  branches  of  international  law  which  have  their  own 
history,  their  own  illustrations,  and  their  own  development. 
Their  growth  has  been  unsystematic,  and  the  assertion  of  right 
under  these  different  heads  has  not  been  closely  connected  or 
simultaneous.  Nevertheless,  it  would  be  illogical  to  regard  them 
as  being  in  themselves  disconnected  topics  or  as  being  the  sub- 
ject of  rights  and  liabilities  which  have  no  common  connexion. 
They  may  also  be  treated,  as  in  fact  they  are,  as  illustrations  of 
the  broad  rule  that  belligerency  and  neutrality  are  states  so  re- 
lated to  one  another  that  the  latter  must  accept  some  abatement 
of  the  full  benefits  of  peace  in  order  that  the  former  may  not 
be  thwarted  in  war  in  the  assertion  and  defence  of  what  is  the 
most  precious  of  all  the  rights  of  nations,  the  right  to  security 
and  independence.  The  categories  of  such  cases  are  not  closed. 
To  deny  to  the  belligerent  under  the  head  of  retaliation  any 
right  to  interfere  with  the  trade  of  neutrals  beyond  that  which, 
quite  apart  from  circumstances  which  warrant  retaliation,  he 
enjoys  already  under  the  heads  of  contraband,  blockade,  and 
unneutral  service,  would  be  to  take  away  with  one  hand  what 


712  RETALIATORY  MEASURES. 

has  formally  been  conceded  with  the  other.  As  between  bellig- 
erents acts  of  retaliation  are  either  the  return  of  blow  for  blow 
in  the  course  of  combat,  or  are  questions  of  the  laws  of  war  not 
immediately  falling  under  the  cognizance  of  a  Court  of  Prize. 
Little  of  this  subject  is  left  to  Prize  Law  beyond  its  effect  on 
neutrals  and  on  the  rights  of  belligerents  against  neutrals,  and 
to  say  that  retaliation  is  invalid  as  against  neutrals,  except 
within  the  old  limits  of  blockade,  contraband,  and  unneutral 
service,  is  to  reduce  retaliation  to  a  mere  simulacrum,  the  title 
of  an  admitted  right  without  practical  application  or  effect. 

Apart  from  The  Zamora,  the  decided  cases  on  this  subject, 
if  not  many,  are  at  least  not  ambiguous.  Of  The  Leonora, 
[1918]  P.  182,  decided  on  the  later  Order  in  Council,  their 
Lordships  say  nothing  now,  since  they  are  informed  that  it  is 
under  appeal  to  their  Lordships'  Board,  and  they  desire  on  the 
present  occasion  to  say  no  more,  which  might  affect  the  deter- 
mination of  that  case,  than  is  indispensable  to  the  disposal  of 
the  present  one. 

Sir  "William  Scott's  decisions  on  the  retaliatory  Orders  in 
Council  were  many,  and  many  of  them  were  affirmed  on  appeal. 
He  repeatedly,  and  in  reasoned  terms,  declared  the  nature  of 
the  right  of  retaliation  and  its  entire  consistency  with  the  prin- 
ciples of  international  law.  Since  then  discussion  has  turned 
on  the  measures  by  which  effect  was  then  given  to  that  right,  not 
on  the  foundation  of  the  principle  itself,  and  their  Lordships  re- 
gard it  as  being  now  too  firmly  established  to  be  open  to  doubt. 

Turning  to  the  question  which  was  little  argued,  if  at  all, 
though  it  is  the  real  question  in  the  case,  whether  the  Order  in 
Council  of  March  11,  1915,  inflicts  hardship  excessive  either  in 
kind  or  in  degree  upon  neutral  commerce,  their  Lordships  think 
that  no  such  hardship  was  shown.  It  might  well  be  said  that 
neutral  commerce  under  this  Order  is  treated  with  all  prac- 
ticable tenderness,  but  it  is  enough  to  negative  the  contention 
that  there  is  avoidable  hardship.  Of  the  later  Order  in  Council 
,  they  say  nothing  now.  If  the  neutral  shipowner  is  paid  a  proper 
price  for  the  service  rendered  by  his  ship,  and  the  neutral  cargo- 
owner  a  proper  price  according  to  the  value  of  his  goods,  sub- 
stantial cause  of  complaint  can  only  arise  if  considerations  are 
put  forward  which  go  beyond  the  ordinary  motives  of  commerce 
and  partake  of  a  political  character,  from  a  desire  either  to  em- 
barrass the  one  belligerent  or  to  support  the  other.  In  the  pres- 
ent case  the  agreement  of  the  parties  as  to  the  amount  to  be 


THE  LEONORA.  713 

allowed  for  freight  disposes  of  all  question  as  to  the  claimants' 
rights  to  compensation  for  mere  inconvenience  caused  by  enforc- 
ing the  Order  in  Council.  Presumably  that  sum  took  into  ac- 
count the  actual  course  and  duration  of  the  voyage  and  consti- 
tuted a  proper  recompense  alike  for  carrying  and  for  discharg- 
ing the  cargo  under  the  actual  circumstances  of  that  service. 
The  further  claims  are  in  the  nature  of  claims  for  damages  for 
unlawful  interference  with  the  performance  of  the  Rotterdam 
charterparty.  They  can  he  maintained  only  by  supposing  that  a 
wrong  was  done  to  the  claimants,  because  they  were  prevented 
from  performing  it,  for  in  their  nature  these  claims  assume  that 
the  shipowners  are  to  be  put  in  the  same  position  as  if  they 
had  completed  the  voyage  under  that  contract,  and  are  not 
merely  to  be  remunerated  on  proper  terms  for  the  performance 
of  the  voyage,  which  was  in  fact  accomplished.  In  other  words, 
they  are  a  claim  for  damages,  as  for  wrong  done  by  the  mere 
fact  of  putting  in  force  the  Order  in  Council.  Such  a  claim 
cannot  be  sustained.  Their  Lordships  will  humbly  advise  His 
Majesty  that  the  appeal  should  be  dismissed  with  costs. 


THE  LEONORA. 

JUDICIAL  COMMITTEE  OF  THE  PBIVT  COUNCIL  OF  GEEAT  BRITAIN.     1919. 
Law  Reports  [1919]  A.  C.  974. 

Appeal  from  decrees  of  the  Admiralty  Division   (in  Prize) 
dated  April  18,  1918,  [1918]  P.  182. 
» 

The  appellants  in  the  two  appeals  were  respectively  the  own- 
ers of  the  Dutch  steamship  Leonora  and  the  owners  of  a  cargo 
of  coal  which  she  was  carrying  when  captured.  The  ship  and 
cargo  were  seized  and  condemned  under  an  Order  in  Coun- 
cil of  February  16,  1917,  known  as  the  second  retaliatory 
Order.  .  .  . 

LORD  SUMNER.  The  Leonora,  a  Dutch  steamship  bound  from 
Rotterdam  to  Stockholm  direct,  was  stopped  on  August  16,  1917, 
by  His  Majesty's  torpedo-boat  F77,  outside  territorial  waters, 
and  shortly  after  passing  Ymuiden.  She  was  taken  into  Har- 
wich. Her  cargo,  which  was  neutral-owned,  consisted  of  coal, 


714  RETALIATORY  MEASURES. 

the  produce  of  collieries  in  Belgium.  It  was  not  intended  that 
she  should  call  at  any  British  or  Allied  port,  nor  had  any  ap- 
plication been  made  on  her  behalf  for  the  appointment  of  a 
British  port  for  the  examination  of  her  cargo.  Both  ship  and 
cargo  were  condemned,  pursuant  to  the  Order  in  Council,  dated 
February  16,  1917,  and  both  the  shipowners  and  the  cargo  own- 
ers appeal.  .  .  . 

The  appellant's  main  case  was  that  the  Order  in  Council  was 
invalid,  principally  on  the  ground  that  it  pressed  so  hardly  on 
neutral  merchants  and  interfered  so  much  with  their  rights 
that,  as  against  them,  it  could  not  be  held  to  fall  within  such 
right  of  reprisal  as  a  belligerent  enjoys  under  the  law  of  na- 
tions. .  .  . 

In  The  Stigstad,  [1919]  A.  C.  279,  their  Lordships  had  oc- 
casion to  consider  and  to  decide  some  at  least  of  the  principles 
upon  which  the  exercise  of  the  right  of  retaliation  rests,  and  by 
those  principles  they  are  bound.  In  the  present  case,  neverthe- 
less, they  have  had  the  advantage  of  counsel's  full  re-examina- 
tion of  the  whole  subject  and  full  citation  of  -the  authorities,  and 
of  a  judgment  by  the  President  in  the  Prize  Court,  which  is 
itself  a  monument  of  research.  The  case  furthermore  has  been 
presented  under  circumstances  as  favourable  to  neutrals  as  pos- 
sible, for  the  difference  in  the  stringency  of  the  two  Orders  in 
Council,  that  of  1915  and  that  of  1917,  is  marked,  since  in  the 
case  of  the  later  Order  the  consequences  of  disregarding  it  have 
been  increased  in  gravity  and  the  burden  imposed  on  neutrals 
has  become  more  weighty.  If  policy  or  sympathy  can  be  in- 
voked in  any  case  they  could  be  and  were  invoked  here. 

Their  Lordships,  however,  after  a  careful  review  of  their 
opinion  in  The  Stigstad,  think  that  they  have  neither  ground  to 
modify,  still  less  to  doubt  that  opinion,  even  if  it  were  open  to 
them  to  do  so,  nor  is  there  any  occasion  in  the  present  case 
to  embark  on  a  general  re-statement  of  the  doctrine  or  a  minute 
re-examination  of  the  authorities. 

There  are  certain  rights,  which  a  belligerent  enjoys  by  the 
law  of  nations  in  virtue  of  belligerency,  which  may  be  enforced 
even  against  neutral  subjects  and  to  the  prejudice  of  their  per- 
fect freedom  of  action,  and  this  because  without  those  rights 
maritime  war  would  be  frustrated  and  the  appeal  to  the  arbitra- 
ment of  arms  be  made  of  none  effect.  Such  for  example  are  the 
rights  of  visit  and  search,  the  right  of  blockade  and  the  right  of 
preventing  traffic  in  contraband  of  war.  In  some  cases  a  part  of 


THE  LEONORA.  715 

the  mode  in  which  the  right  is  exercised  consists  of  some  solemn 
act  of  proclamation  on  the  part  of  the  belligerent,  by  which  no- 
tice is  given  to  all  the  world  of  the  enforcement  of  these  rights 
and  of  the  limits  set  to  their  exercise.  Such  is  the  proclamation 
of  a  blockade  and  the  notification  of  a  list  of  contraband.  In 
these  cases  the  belligerent  Sovereign  does  not  create  a  new  of- 
fence motu  proprio;  he  does  not,  so  to  speak,  legislate  or  create 
a  new  rule  of  law ;  he  elects  to  exercise  his  legal  rights  and  puts 
them  into  execution  in  accordance  with  prescriptions  of  the  ex- 
isting law.  Nor  again  in  such  cases  does  the  retaliating  bellig- 
erent invest  a  Court  of  Prize  with  a  new  jurisdiction  or  make 
the  Court  his  mandatory  to  punish  a  new  offence.  The  office  of 
a  Court  of  Prize  is  to  provide  a  formal  and  regular  sanction 
of  the  law  of  nations  applicable  to  maritime  warfare,  both  be- 
tween belligerent  and  belligerent  and  between  belligerent  and 
neutral.  "Whether  the  law  in  question  is  brought  into  operation 
by  the  act  of  both  belligerents  in  resorting  to  war,  as  is  the  case 
with  the  rules  of  international  law  as  to  hostilities  in  general, 
or  by  the  assertion  of  a  particular  right  arising  out  of  a  par- 
ticular provocation  in  the  course  of  the  war  on  the  part  of  one 
of  them,  it  is  equally  the  duty  of  a  Court  of  Prize,  by  virtue 
of  its  general  jurisdiction  as  such,  to  provide  for  the  regular 
enforcement  of  that  right,  when  lawfully  asserted  before  it,  and 
not  to  leave  that  enforcement  to  the  mere  jurisdiction  of  the 
sword.  Disregard  of  a  valid  measure  of  retaliation  is  as  against 
neutrals  just  as  justiciable  in  a  Court  of  Prize  as  is  breach  of 
blockade  or  the  carriage  of  contraband  of  war.  The  jurisdiction 
of  a  Court  of  Prize  is  at  least  as  essential  in  the  neutral's  in- 
terest as  in  the  interest  of  the  belligerent,  and  if  the  Court  is 
to  have  power  to  release  in  the  interest  of  the  one,  it  must  also 
have  inherent  power  to  condemn  in  justice  to  the  other.  Cap- 
ture and  condemnation  are  the  prescriptive  and  established 
modes  by  which  the  law  of  nations  as  applicable  to  maritime 
warfare  is  enforced.  Statutes  and  international  conventions 
may  invest  the  Court  with  other  powers  or  prescribe  other 
modes  of  enforcing  the  law,  and  the  belligerent  Sovereign  may 
in  the  appropriate  form  waive  part  of  his  rights  and  disclaim 
condemnation  in  favour  of  some  milder  sanction,  such  as  deten- 
tion. In  the  terms  of  the  present  Order,  which  says  that  a  ves- 
sel (par.  2)  shall  be  "liable  to  capture  and  condemnation"  and 
that  goods  (par.  3)  shall  be  "liable  to  condemnation,"  some  ar- 
gument has  been  found  for  the  appellant's  main  proposition, 


716  RETALIATORY,  MEASURES. 

that  the  Order  in  Council  creates  an  offence  and  attaches  this 
penalty,  but  their  Lordships  do  not  accept  this  view.  The 
Order  declares,  by  way  of  warning  and  for  the  sake  of  complete- 
ness, the  consequences  which  may  follow  from  disregard  of  it; 
but,  if  the  occasion  has  given  rise  to  the  right  to  retaliate,  if  the 
belligerent  has  validly  availed  himself  of  the  occasion,  and  if 
the  vessel  has  been  encountered  at  sea  under  the  circumstances 
mentioned,  the  right  and  duty  to  bring  the  ship  and  cargo  be- 
fore a  Court  of  Prize,  as  for  a  justiciable  offence  against  the 
right  of  the  belligerent,  has  arisen  thereupon,  and  the  jurisdic- 
tion to  condemn  is  that  which  is  inherent  in  the  Court.  That 
a  rebuttable  presumption  is  to  be  deemed  to  arise  under  par.  1, 
and  that  a  saving  proviso  is  added  to  par.  2,  are  modifications 
introduced  by  way  of  waiver  of  the  Sovereign's  rights.  Had 
they  been  omitted  the  true  question  would  still  have  been  the 
same,  though  arising  in  a  more  acute  form,  namely,  does  this 
exercise  of  the  right  of  retaliation  upon  the  enemy  occasion  in- 
convenience or  injustice  to  a  neutral,  so  extreme  as  to  invalidate 
it  as  against  him?  In  principle  it  is  not  the  belligerent  who 
creates  an  offence  and  imposes  a  penalty  by  his  own  will  and 
then  by  his  own  authority  empowers  and  directs  the  Court  of 
Prize  to  enforce  it.  It  is  the  law  of  nations,  in  its  application 
to  maritime  warfare,  which  at  the  same  time  recognizes  the 
right,  of  which  the  belligerent  can  avail  himself  sub  modo,  and 
makes  violation  of  that  right,  when  so  availed  of,  an  offence, 
and  is  the  foundation  and  authority  for  the  right  and  duty  of 
the  Court  of  Prize  to  condemn,  if  it  finds  the  capture  justified, 
unless  that  right  has  been'  reduced  by  statute  or  otherwise,  or 
that  duty  has  been  limited  by  the  waiver  of  his  rights  on  the 
part  of  the  Sovereign  of  the  captors. 

It  is  equally  inadmissible  to  describe  such  an  Order  in  Council 
as  this  as  an  executive  measure  of  police  on  the  part  of  the 
Crown  for  the  purpose  of  preventing  an  inconvenient  trade,  or 
as  an  authority  to  a  Court  of  Prize  to  punish  neutrals  for  the 
enjoyment  of  their  liberties  and  the  exercise  of  their  rights. 
Both  descriptions,  as  is  the  way  with  descriptions  arguendo,  beg 
the  question.  Undoubtedly  the  right  of  retaliation  exists.  It 
is  described  in  The  Zamora,  [1916]  2  A.  C.  77;  it  is  decided  in 
The  Stigstad,  [1919]  A.  C.  279,  as  it  had  so  often  been  decided 
by  Sir  William  Scott  over  a  century  ago.  It  would  be  disastrous 
for  the  neutral,  if  this  right  were  a  mere  executive  right  not 
subject  to  review  in  a  Prize  Court ;  it  would  be  a  denial  of  the 


THE  LEONORA.  717 

belligerents'  right,  if  it  could  be  exercised  only  subject  to  a 
paramount  and  absolute  right  of  neutrals  to  be  free  to  carry- 
on  their  trade  without  interference  or  inconvenience.  This  lat- 
ter contention  has  already  been  negatived  in  The  Stigstad.  The 
argument  in  favour  of  the  former,  drawn  from  the  decisions  of 
Sir  William  Scott,  seems  to  their  Lordships  to  be  no  less^  unac- 
ceptable. With  the  terms  of  the  Proclamations  and  Orders  in 
Council  from  1806  to  1812  their  Lordships  are  not  now  con- 
cerned. They  were  such  that  the  decisions  on  them  in  many 
cases  involved  not  merely  the  use  of  the  term  "blockade"  but 
discussion  of,  or  at  least  allusion  to,  the  nature  of  that  right. 
It  is,  however,  in  their  opinion  a  mistake  to  argue,  as  has  been 
argued  before  them,  that  in  those  decisions  the  right  to  condemn 
was  deemed  to  arise  from  the  fact  that  the  cases  were  cases  of 
blockade,  although  the  occasion  for  the  blockade  was  the  passing 
of  a  retaliatory  Order.  In  their  opinion  Sir  William  Scott's 
doctrine  consistently  was  that  retaliation  is  a  branch  of  the 
rights  which  the  law  of  nations  recognizes  as  belonging  to  bel- 
ligerents, and  that  it  is  as  much  enforceable  by  Courts  of  Prize 
as  is  the  right  of  blockade.  They  find  no  warrant  or  authority 
for  holding  that  it  is  only  enforceable  by  them,  when  it  chances 
to  be  exercised  under  the  form  or  the  conditions  of  a  valid  block- 
ade. When  once  it  is  established  that  the  conduct  of  the  enemy 
gave  occasion  for  the  exercise  of  the  right  of  retaliation,  the 
real  question  is  whether  the  mode  in  which  it  has  been  exercised 
is  such  as  to  be  invalid  by  reason  of  the  burden  which  it  im- 
poses on  neutrals,  a  question  pre-eminently  one  of  fact  and  of 
degree. 

The  onslaught  upon  shipping  generally  which  the  German 
Government  announced  and  carried  out  at  the  beginning  of 
1917  is  now  matter  of  history.  Proof  of  its  formidable  char- 
acter, if  proof  were  needed,  is  to  be  found  in  a  comparison  be- 
tween the  Retaliation  Orders  in  Council  of  1915  and  1917,  and 
their  Lordships  take  the  recitals  of  the  latter  Order  as  suffi- 
ciently establishing  the  necessity  for  further  invoking  the  right 
of  retaliation.  They  address  themselves  accordingly  to  what  is 
the  real  question  in  the  present  appeal,  namely,  the  character 
and  the  degree  of  the  danger  and  inconvenience  to  which  the 
trade  of  neutrals  was  in  fact  subjected  by  the  enforcement  of 
that  Order.  They  do  not  think  it  necessary  to  criticize  theoretic 
applications  of  the  language  of  the  Order  to  distant  seas  where 
the  enemy  had  neither  trade  nor  shipping,  a  criterion  which  was 


718  RETALIATORY  MEASURES. 

argued  for,  but  which  they  deem  inapplicable.  Nor  have  they 
been  unmindful  of  the  fact  that,  to  some  extent,  a  retaliatory 
Order  visits  on  neutrals  the  consequences  of  others'  wrongdoing, 
always  disputed  though  in  the  present  ease  hardly  disputable, 
and  that  the  other  belligerent,  in  his  turn  and  also  under  the 
name  'of  Retaliation,  may  impose  upon  them  fresh  restrictions, 
but  it  seems  to  them  that  these  disadvantages  are  inherent  in 
the  nature  of  this  established  right,  are  unavoidable  under  a 
system  which  is  a  historic  growth  and  not  a  theoretic  model  of 
perfection,  and  are  relevant  in  truth  only  to  the  question  of 
degree.  Accordingly  they  have  taken  the  facts  as  they  affected 
the  trade  in  which  the  Leonora  was  engaged,  and  they  have 
sincerely  endeavoured,  as  far  as  in  them  lay,  to  view  these  facts 
as  they  would  have  appeared  to  fair-minded  and  reasonable  neu- 
trals and  to  dismiss  the  righteous  indignation  which  might  well 
become  those  who  recall  only  the  crisis  of  a  desperate  and  ter- 
rible struggle. 

Compliance  with  the  requirements  of  the  Order  in  Council 
would  have  involved  the  Leonora  in  difficulties,  partly  of  a  com- 
mercial and  partly  of  a  military  character.  Her  voyage,  and 
with  it  the  ordinary  expenses  of  her  voyage,  would  have  been 
enlarged,  and  the  loss  of  time  and  possibly  the  length  of  the 
voyage  might  have  been  added  to  by  the  fact  that  no  port  or 
class  of  ports  of  call  had  been  appointed  for  the  purpose  of  the 
Order.  Inconvenience  of  this  character  seems  to  be  inevitable 
under  the  circumstances.  In  so  far  as  it  is  measurable  entirely 
in  terms  of  money,  the  extra  expense  in  such  as  could  be  passed 
on  to  the  parties  liable  to  pay  freight,  and  neither  by  itself  nor 
in  connection  with  other  and  more  serious  matters  should  this 
kind  of  inconvenience  be  rated  high. 

It  is  important  to  observe  that  the  Order  does  not  forbid  the 
carriage  of  the  goods  in  question  altogether.  The  neutral  vessel 
may  carry  them  at  her  peril,  and  that  peril,  so  far  as  condemna- 
tion is  concerned,  may  be  averted  if  she  calls  at  an  appointed 
port.  The  shipowner,  no  doubt,  would  say  that  if  his  ship  is  to 
make  the  call  he  will  never  be  able  to  ship  the  cargo,  for  its 
chance  of  escape  would  be  but  small,  and  that  if  he  is  to  get  the 
cargo  he  must  risk  his  ship  and  undertake  to  proceed  direct  to 
her  destination.  The  contention  is  less  formidable  than  it  ap- 
pears to  be  on  the  surface.  Their  Lordships  know  well,  and  the 
late  President  with  his  experience  knew  incomparably  better, 
with  what  ingenuity  and  artifice  the  origin  of  a  cargo  and  every 


THE  LEONORA.  719 

other  damaging  circumstance  about  it  have  been  disguised  and 
concealed  where  the  prize  of  success  was  high  and  the  parties 
concerned  were  unfettered  by  scruples  and  inspired  by  no  dis- 
interested motives.  They  think  that  the  chance  of  escape  in  a 
British  port  of  call  must  be  measured  against  the  enormous 
economic  advantage  to  the  enemy  of  carrying  on  this  export 
trade  for  the  support  of  his  foreign  exchange  and  the  benefit  of 
his  much-needed  imports,  and  they  are  convinced  that  the 
chance  might  well  be  sufficient  to  induce  the  promoters  of  the 
trade  both  to  pay,  and  indeed  to  prepay,  whatever  freight  the 
shipowner  might  require  in  order  to  cover  extra  insurance  and 
the  costs  of  a  protracted  voyage,  and  to  give  to  the  actual 
shipper  such  favourable  terms  of  purchase,  insurance  or  other- 
wise, as  would  lead  him  to  expose  his  cargo  to  the  risk  of  de- 
tection of  its  origin.  They  are  far  from  thinking  that  com- 
pliance with  the  Order  would  exclude  neutrals  from  all  the 
advantage  of  the  trade.  If  the  voyages  were  fewer  in  number 
they  would  tend  to  be  more  profitably  singly,  and  in  any  case 
this  particular  traffic  is  but  a  very  small  part  of  the  employ- 
ment open,  and  legitimately  so,  to  neutral  traders,  and  the  risk 
of  its  loss  need  not  be  regarded  as  of  great  moment. 

There  is  also  some  evidence,  though  it  is  not  very  clear,  that 
Dutch  municipal  law  forbade,  under  heavy  penalties,  that  such 
a  deviation  as  would  be  required  by  a  call  at  a  British  port 
should  be  made  by  a  Dutch  ship  which  had  cleared  for  Sweden. 
If,  however,  the  Order  in  Council  is  in  other  respects  valid,  their 
Lordships  fail  to  see  how  the  rights  of  His  Majesty  under  it 
can  be  diminished  or  the  authority  of  an  international  Court 
can  be  curtailed  by  local  rules,  which  forbid  particular  nationals 
to  comply  with  the  Order.  If  the  neutral  is  inconvenienced  by 
such  a  conflict  of  duty,  the  cause  lies  in  the  prescriptions  of  his 
own  country's  law,  and  does  not  involve  any  invalidity  in  the 
Order. 

Further,  it  is  pointed  out  that,  with  the  exception  of  France, 
the  other  Allied  Powers  did  not  find  it  necessary  to  resort  to  a 
similar  act  of  retaliation,  and  it  is  contended  that,  upon  a  com- 
parison with  the  Order  of  1915  also,  the  Consequences  involved 
in  a  disregard  of  the  Order  of  1917  were  of  unnecessary  severity 
and  were  unjustifiable.  The  first  point  appears  to  be  covered 
by  the  rule  that  on  a  question  of  policy — and  the  question 
whether  the  time  and  occasion  have  arisen  for  resort  to  a  further 
exercise  of  the  right  of  retaliation  is  essentially  a  question  of 


720  RETALIATORY  MEASURES. 

policy — a  Court  of  Prize  ought  to  accept  as  sufficient  proof  the 
public  declarations  of  the  responsible  Executive,  but  in  any  case 
the  special  maritime  position  of  His  Majesty  in  relation  to  that 
of  his  Allies  affords  abundant  ground  for  refusing  to  regard  a 
different  course  pursued  by  those  Allies  as  a  reason  for  inval- 
idating the  Order  of  1917.  If  the  second  point  involves,  as  it 
seems  to  imply,  the  contention  that  a  belligerent  must  retaliate 
on  his  enemy,  so  far  as  neutrals  are  concerned,  only  on  the 
terms  of  compensating  them  for  inconvenience,  if  any  is  sus- 
tained, and  of  making  it  worth  their  while  to  comply  with  an 
Order  which  they  do  not  find  to  be  advantageous  to  their  par- 
ticular interests,  it  is  inconsistent  with  the  whole  theory  on 
which  the  right  of  retaliation  is  exercised.  The  right  of  retalia- 
tion is  a  right  of  the  belligerent,  not  a  concession  by  the  neutral. 
It  is  enjoyed  by  law  and  not  on  sufferance ;  and  doubly  so  when, 
as  in  the  present  case,  the  outrageous  conduct  of  the  enemy 
might  have  been  treated  as  acts  of  war  by  all  mankind. 

Accordingly  the  most  material  question  in  this  case  is  the  de- 
gree of  risk  to  which  the  deviation  required  would  subject  a 
neutral  vessel  which  sought  to  comply  with  the  Order.  It  is 
said,  and  with  truth,  that  the  German  plan  was  by  mine  and 
by  submarine  to  deny  the  North  Sea  to  trade ;  that  the  danger, 
prospective  and  actual,  which  that  plan  involved  must  be 
deemed  to  have  been  real  and  great,  or  else  the  justification  of 
the  Order  itself  would  fail;  and  that  the  deviation,  which  the 
Leonora  must  have  undertaken,  would  have  involved  crossing 
and  re-crossing  the  area  of  peril. 

Their  Lordships  recall  and  apply  what  was  said  in  The 
Stigstad,  that  in  estimating  the  burden  of  the  retaliation  ac- 
count must  be  taken  of  the  gravity  of  the  original  offence  which 
provoked  it,  and  that  it  is  material  to  consider  not  only  the  bur- 
den which  the  neutral  is  called  upon  to  bear,  but  the  peril  from 
which,  at  the  price  of  that  burden,  it  may  be  expected  that  bel- 
ligerent retaliation  will  deliver  him.  It  may  be — let  us  pray 
that  it  may  be  so — that  an  Order  of  this  severity  may  never  be 
needed  and  therefore  may  never  be  justified  again,  for  the  right 
of  retaliation  is  one  to  be  sparingly  exercised  and  to  be  strictly 
reviewed.  Still  the  facts  must  be  faced.  Can  there  be  a  doubt 
that  the  original  provocation  here  was  as  grave  as  any  recorded 
in  history;  that  it  menaced  and  outraged  neutrals  as  well  as 
belligerents ;  and  that  neutrals  had  no  escape  from  the  peril,  ex- 
cept by  the  successful  and  stringent  employment  of  unusual 


THE  LEONORA.  721 

measures,  or  by  an  inglorious  assent  to  the  enslavement  of  their 
trade?  Their  Lordships  have  none. 

On  the  evidence  of  attacks  on  vessels  of  all  kinds  and  flags, 
hospital  ships  not  excepted,  which  this  record  contains,  it  is 
plain  that  measures  of  retaliation  and  repression  would  be  fully 
justified  in  the  interest  of  the  common  good,  even  at  the  cost 
of  very  considerable  risk  and  inconvenience  to  neutrals  in  par- 
ticular cases.  Such  a  conclusion  having  been  established,  their 
Lordships  think  that  the  burden  of  proof  shifts,  and  that  it  was 
for  the  appellants  to  show,  if  they  desired,  that  the  risk  and  in- 
convenience were  in  fact  excessive,  for  the  matter  being  one  of 
degree  it  is  not  reasonable  to  require  that  the  Crown,  having 
proved  so  much  affirmatively,  should  further  proceed  to  prove 
a  negative  and  to  show  that  the  risk  and  inconvenience  in  any 
particular  class  of  cases  were  not  excessive.  Much  is  made  in 
the  appellants'  evidence  of  the  fact  that  calling  at  a  British 
port  would  have  taken  the  Leonora  across  a  German  mine-field, 
but  it  is  very  noticeable  that  throughout  the  case  the  very  nu- 
merous instances  of  losses  by  German  action  are  cases  of  losses 
by  the  action  of  submarines  and  not  by  mines.  The  appellants 
filed  a  series  of  affidavits,  stating  in  identical  terms  that  in  pro- 
ceeding to  a  British  port  of  call  vessels  would  incur  very  great 
risk  of  attack  by  submarines,  especially  if  unaccompanied  by 
an  armed  escort.  Of  the  possibility  of  obtaining  an  armed 
escort  or  other  similar  protection  they  say  nothing,  apparently 
because  they  never  had  any  intention  of  complying  with  the 
Order  in  Council,  and  therefore  were  not  concerned  to  ascertain 
how  much  danger,  or  how  little,  their  compliance  would  really 
involve.  Proof  of  the  amount  of  danger  involved  in  crossing 
the  mine-field  in  itself  is  singularly  lacking,  but  the  fact  is  plain 
that  after  a  voyage  of  no  extraordinary  character  the  Leonora 
did  reach  Harwich  in  safety. 

Under  these  circumstances  their  Lordships  see  no  sufficient 
reason  why,  on  a  question  of  fact,  as  this  question  is,  they  should 
differ  from  the  considered  conclusion  of  the  President.  He  was 
satisfied  that  the  Order  in  Council  did  not  involve  greater  haz- 
ard or  prejudice  to  the  neutral  trade  in  question  than  was  com- 
mensurate with  the  gravity  of  the  enemy  outrages  and  the 
common  need  for  their  repression,  and  their  Lordships  are  not 
minded  to  disturb  his  finding.  The  appeals  accordingly  fail. 
Their  Lordships  will  humbly  advise  His  Majesty  that  they 
should  be  dismissed  with  costs. 


722  RETALIATORY  MEASURES. 

NOTE. — In  the  course  of  an  exhaustive  opinion  characterized  by  Sir 
Frederick  Pollock  as  "a  landmark  in  the  history  of  prize  law,"  Sir 
Samuel  Evans,  President  of  the  British  Prize  Court,  in  speaking  of 
the  relation  of  the  right  of  retaliation  to  international  law,  in  The 
Leonora  (1918),  L.  R.  [1918]  P.  182,  226,  227,  228,  said: 

If  retaliation  is  permissible  for  conduct  of  a  belligerent 
clearly  contrary  to  the  law  of  nations  and  of  humanity,  the 
acts  of  retaliation  (assuming  them  to  be  in  the  circumstances 
reasonable)  may  be  described  as  outside  and  beyond  the  limits 
of  the  law  of  nations  although  justifiable;  the  alternative  view 
is  that  the  circumstances  which  call  for  such  acts  of  retalia- 
tion extend  that  law  so  as  to  cover  and  comprehend  them 
within  its  limits.  The  latter  seems  to  me  to  be  the  preferable 
view.  It  is  because  the  retaliation  is  regarded  as  forming 
part  of  the  law  of  nations  that  it  is  cognizable  in,  and  can  be 
enforced  by,  a  Court  of  Prize.  .  .  . 

Let  me  add  that  if  such  a  retaliation  was  not  permissible 
by  the  law  of  nations,  it  is  conceivable  that  neutral  States 
might,  by  the  exercise  of  their  alleged  right  to  carry  on  trade 
with  a  belligerent  without  interference,  become  the  actual 
arbiters  of  the  fate  of  a  disastrous  war  to  which  they  were 
not  parties,  and  from  which  they  not  only  did  not  suffer  loss, 
but  actually  achieved  gain. 

The  Order  in  Council  of  February  16,  1917  recited  the  measures 
adopted  by  Germany  for  the  establishment  of  a  war  zone  about  Great 
Britain,  France  and  Italy  which  made  it  necessary  that  further  steps 
should  be  taken  for  preventing  "commodities  of  any  kind  from  reach- 
ing or  leaving  the  enemy  countries,"  and  proceeded: 

His  Majesty  is  therefore  pleased,  by  and  with  the  advice  of 
his  Privy  Council,  to  order,  and  it  is  hereby  ordered,  that  the 
following  directions  shall  be  observed  in  respect  of  all  vessels 
which  sail  from  their  port  of  departure  after  the  date  of  this 
Order: 

1.  A  vessel  which  is  encountered  at  sea  on  her  way  to  or 
from  a  port  in  any  neutral  country  affording  means  of  access 
to  the  enemy  territory  without  calling  at  a  port  in  British  or 
allied    territory,    shall,   until   the   contrary   is   established,   be 
deemed  to  be  carrying  goods  with  an  enemy  destination,  or 
of  enemy  origin,  and  shall  be  brought  in  for  examination,  and, 
if  necessary,  for  adjudication  before  the  Prize  Court. 

2.  Any  vessel  carrying  goods  with  an  enemy  destination,  or 
of  enemy  origin,  shall  be  liable  to  capture  and  condemnation 
in  respect  of  the  carriage  of  such  goods;  provided  that,  in  the 
case   of   any   vessel   which    calls   at   an   appointed   British   or 
allied  port  for  the  examination  of  her  cargo,  no  sentence  of 
condemnation  shall  be  pronounced  in  respect  only  of  the  car- 
riage of  goods  of  enemy  origin  or  destination,  and  no  such  pre- 
sumption as  is  laid  down  in  art.  1  shall  arise. 


NOTE.  723 

3.  Goods  which  are  found  on  the  examination  of  any  ves- 
sel to  be  goods  of  enemy  origin  or  of  enemy  destination  shall 
be  liable  to  condemnation. 

It  will  be  noted  that  this  Order  in  Council,  which  was  more  stringent 
than  the  Order  in  Council  of  1915,  made  no  attempt  to  interfere  with 
cargoes  which  were  intended  for  consumption  in  neutral  countries, 
provided  the  vessels  carrying  such  cargoes  submitted  to  examination 
at  designated  British  or  Allied  ports. 

While  the  Orders  in  Council  adopted  by  Great  Britain  in  answer  to 
the  Berlin  and  Milan  Decrees  may  be  properly  described  as  retaliatory 
measures,  those  adopted  in  1915  and  1917  are  more  easily  defended  on 
other  grounds.  They  have  been  attacked  chiefly  because  they  inter- 
fered with  neutral  commerce  between  neutral  ports.  If  however  it  be 
recognized  that  a  belligerent  may  rightfully  capture  or  destroy  the 
commerce  of  its  enemy  when  found  on  the  high  seas,  the  fact  that 
such  commerce  is  at  one  stage  between  neutral  ports  cannot  be  al- 
lowed to  operate  to  the  destruction  of  the  belligerent  right  of  capture. 
All  the  world  knew  that  a  large  part  of  the  cargoes  consigned  to  Dutch 
and  Danish  ports  was  destined  for  Germany.  In  the  face  of  that  fact, 
the  American  Secretary  of  State,  in  his  exchange  of  notes  with  the 
British  Foreign  Office  as  to  the  effect  on  American  commerce  of  the 
Order  in  Council  of  1915,  argued  that  Great  Britain's  right  to  inter- 
fere with  commerce  with  the  enemy  depended  upon  a  strict  compliance 
with  the  technical  rules  of  blockade  which  had  been  developed  in  pre- 
vious wars,  and  ignored  the  innovations  in  methods  of  warfare  which 
necessitated  new  methods  of  exercising  the  belligerent  rights  of  cap- 
ture and  blockade.  While  admitting  the  right  to  prevent  any  direct 
commercial  intercourse  with  the  enemy  through  enemy  ports  which 
had  been  blockaded,  it  was  contended  that  if  the  commerce  was  carried 
on  through  the  ports  of  contiguous  neutral  countries,  it  was  not  open 
to  attack  on  the  high  seas.  This  was  a  sacrifice  of  substance  to  form, 
and  in  the  words  of  Sir  Samuel  Evans  was  allowing  "one's  eyes  to  be 
filled  by  the  dust  of  theories  and  technicalities,  and  to  be  blinded  to  the 
realities  of  the  case." 

The  correspondence  between  the  American  Department  of  State  and 
the  British  Foreign  Office  as  to  the  Order  in  Council  of  1915  is  well 
treated  in  Hyde,  II,  657. 

In  the  course  of  the  Great  War  several  conditions  developed  which 
will  materially  modify  the  law  of  war.  In  the  first  place,  much  of  the 
old  law  as  to  the  relations  between  belligerent  states  is  based  upon 
the  assumption  that  war  is  in  essence  a  conflict  between  their  fighting 
forces  and  not  between  their  populations.  Whether  or  not  that  con- 
dition ever  in  fact  existed,  it  no  longer  obtains.  Prior  to  the  Great 
War,  all  the  resources  of  Germany — military,  industrial  and  financial — 
had  been  organized  for  war.  Under  such  an  organization  a  peasant 
woman  cultivating  a  farm  was  as  much  a  part  of  the  military  machine 
as  was  a  soldier  in  the  ranks,  and  from  a  military  standpoint  there 
was  no  reason  for  placing  the  two  in  different  categories.  In  the 
course  of  the  Great  War,  the  adversaries  of  Germany  were  forced  to 
adopt  a  similar  type  of  organization,  and  in  any  future  war  of  mag- 


724  RETALIATORY  MEASURES. 

nltude,  the  resources  of  the  belligerents  will  be  mobilized  on  the  same 
principle  but  with  even  greater  care  and  effectiveness.  This  will  nec- 
essarily result  in  a  change  in  some  of  the  rules  of  international  law. 
One  of  the  first  which  will  be  modified  or  even  abolished  is  that  which 
distinguishes  between  combatants  and  non-combatants.  In  future  wars 
the  only  non-combatants  will  be  those  who  are  physically  unable  to 
contribute  anything  to  the  national  resources.  They  will  constitute  so 
small  a  proportion  of  the  population  and  the  agencies  of  warfare  will 
be  of  such  a  kind  that  their  rights  will  receive  scant  respect.  This  is 
the  inevitable  result  of  organizing  a  whole  nation  for  war. 

In  the  second  place,  the  old  distinction  between  contraband  and 
non-contraband  will  be  little  regarded  and  will  probably  disappear 
altogether.  If  entire  nations  are  organized  for  war,  the  basis  of  the 
distinction  no  longer  exists,  and  all  cargoes  for  the  use  of  the  enemy 
population  will  be  subject  to  capture. 

In  the  third  place,  the  invention  of  the  submarine  and  of  torpedoes 
which  can  be  directed  by  radio  makes  impossible  the  maintenance  of 
a  blockade  in  accordance  with  the  old  rules.  Hence  if  belligerents  are 
to  exercise  their  recognized  rights  against  the  commerce  of  the  enemy, 
they  must  devise  new  means  for  the  accomplishment  of  their  object. 
If  the  end  be  legitimate,  any  means  which  are  plainly  adapted  to  it 
and  which  do  not  offend  the  current  standards  of  humanity  in  the 
waging  of  war  or  violate  international  agreements  must  be  recognized 
as  legitimate.  It  is  not  to  be  expected  that  a  belligerent  will  risk 
the  loss  of  a  war  merely  because  new  methods  of  warfare  have  made 
the  old  rules  of  blockade  inapplicable. 


CHAPTER  XX. 

THE  DOCTRINE  OF  CONTINUOUS  VOYAGE  OR  ENEMY 
DESTINATION. 

THE  WILLIAM. 

LORDS  COMMISSIONERS  OF  APPEAL  IN  PRIZE  CAUSES  or  ENGLAND.    1806. 
5  C.  Robinson,  385. 

This  was  a  question  on  the  continuity  of  a  voyage  in  the  colo- 
nial trade  of  the  enemy,  brought  by  appeal  from  the  Vice  Ad- 
miralty Court  at  Halifax,  where  the  ship  and  cargo,  taken  on 
a  destination  to  Bilboa  in  Spain,  and  claimed  on  behalf  of 
Messrs.  W.  and  N.  Hooper  of  Marblehead  in  the  state  of  Massa- 
chusetts, had  been  condemned  17th  July,  1800. 

It  appeared  in  evidence,  that  the  ship  had  gone  to  Martinique, 
where  the  outward  cargo  was  disposed  of;  that  she  then  pro- 
ceeded to  La  Guira,  and  took  on  board  a  cargo  of  cocoa,  the 
property  of  the  owners,  which  was  brought  to  Marblehead  on 
the  29th  May,  and  unladen;  that  the  ship  was  then  cleaned  and 
slightly  repaired,  and  again  took  on  board  the  chief  part  of 
the  former  cargo,  .  .  .  and  sailed  on  or  before  the  7th  June, 
upon  a  destination  to  Bilboa.  Among  the  papers  was  a  certifi- 
cate from  the  collector  of  the  customs,  "that  this  vessel  had  en- 
tered and  landed  a  cargo  of  cocoa  belonging  to  Messrs.  W.  and 
N.  Hooper,  and  that  the  duties  had  been  secured  agreeable  to 
law,  and  that  the  said  cargo  had  been  re-shipped  on  board  this 
vessel  bound  for  Bilboa."  .  .  . 

SIR  WILLIAM  GRANT — The  question  in  this  case  is,  whether 
that  part  of  the  cargo  which  has  been  the  subject  of  further 
proof,  and  which,  it  is  admitted,  was  at  the  time  of  the  capture, 
going  to  Spain,  is  to  be  considered  as  coming  directly  from 
Laguira  within  the  meaning  of  his  Majesty's  instructions.  Ac- 
cording to  our  understanding  of  the  law,  it  is  only  from  those 
instructions  that  neutrals  derive  any  right  of  carrying  on  with 

725 


726  CONTINUOUS  VOYAGE  OR  ENEMY  DESTINATION. 

the  colonies  of  our  enemies,  in  time  of  war,  a  trade  from  which 
they  were  excluded  in  time  of  peace.  The  instructions  had  not 
permitted  the  direct  trade  between  the  hostile  colony  and  its 
mother  country,  but  had,  on  the  contrary  ordered  all  vessels 
engaged  in  it  to  be  brought  in  for  lawful  adjudication;  and 
what  the  present  claimants  accordingly  maintain,  is  not  that 
they  could  carry  the  produce  of  Laguira  directly  to  Spain ;  but 
that  they  were  not  so  carrying  the  cargo  in  question,  inasmuch 
as  the  voyage  in  which  i't  was  taken  was  a  voyage  from  North 
America,  and  not  directly  from  a  colony  of  Spain. 

What  then,  with  reference  to  this  subject,  is  to  be  considered 
as  a  direct  voyage  from  one  place  to  another  ?  Nobody  has  ever 
supposed  that  a  mere  deviation  from  the  straightest  and  short- 
est course,  in  which  the  voyage  could  be  performed,  would 
change  its  denomination,  and  make  it  cease  to  be  a  direct  one 
within  the  intendment  of  the  instructions.  Nothing  can  depend 
on  the  degree  or  the  direction  of  deviation — whether  it  be  of 
more  or  fewer  leagues,  whether  towards  the  coast  of  Africa,  or 
towards  that  of  America.  Neither  will  it  be  contended  that 
the  point  from  which  the  commencement  of  a  voyage  is  to  be 
reckoned  changes  as  often  as  the  ship  stops  in  the  course  of  it; 
nor  will  it  the  more  change,  because  a  party  may  choose  arbi- 
trarily by  the  ship's  papers  or  otherwise  to  give  the  name  of  a 
distinct  voyage  to  each  stage  of  a  ship's  progress.  The  act  of 
shifting  the  cargo  from  the  ship  to  the  shore,  and  from  the 
shore  back  again  into  the  ship,  does  not  necessarily  amount  to 
the  termination  of  one  voyage  and  the  commencement  of  an- 
other. It  may  be  wholly  unconnected  with  any  purpose  of  im- 
portation into  the  place  where  it  is  done :  Supposing  the  land- 
ing to  be  merely  for  the  purpose  of  airing  or  drying  the  goods, 
or  of  repairing  the  ship,  would  any  man  think  of  describing 
the  voyage  as  beginning  at  the  place  where  it  happened  to  be- 
come necessary  to  go  through  such  a  process?  Again,  let  it 
be  supposed  that  the  party  has  a  motive  for  desiring  to  make 
the  voyage  appear  to  begin  at  some  other  place  than  that  of 
the  original  lading,  and  that  he  therefore  lands  the  cargo 
purely  and  solely  for  the  purpose  of  enabling  himself  to  affirm, 
that  it  was  at  such  other  place  that  the  goods  were  taken  on 
board,  would  this  contrivance  at  all  alter  the  truth  of  the  fact? 
Would  not  the  real  voyage  still  be  from  the  place  of  the  original 
shipment,  notwithstanding  the  attempt  to  give  it  the  appear- 
ance of  having  begun  from  a  different  place?  The  truth  may 


THE  WILLIAM.  727 

not  always  be  discernible,  but  when  it  is  discovered,  it  is  ac- 
cording to  the  truth  and  not  according  to  the  fiction,  that  we 
are  to  give  to  the  transaction  its  character  and  denomination. 
If  the  voyage  from  the  place  of  lading  be  not  really  ended,  it 
matters  not  by  what  acts  the  party  may  have  evinced  his  desire 
of  making  it  appear  to  have  been  ended.  That  those  acts  have 
been  attended  with  trouble  and  expence  cannot  alter  their 
quality  or  their  effect.  The  trouble  and  expence  may  weigh  as 
circumstances  of  evidence,  to  shew  the  purpose  for  which  the 
acts  were  done;  but  if  the  evasive  purpose  be  admitted  or 
proved,  we  can  never  be  found  to  accept  as  a  substitute  for 
the  observance  of  the  law,  the  means,  however  operose,  which 
have  been  employed  to  cover  a  breach  of  it.  Between  the 
actual  importation  by  which  a  voyage  is  really  ended,  and  the 
colourable  importation  which  is  to  give  it  the  appearance  of 
being  ended,  there  must  necessarily  be  a  great  resemblance. 
The  acts  to  be  done  must  be  almost  entirely  the  same ;  but  there 
is  this  difference  between  them. — The  landing  of  the  cargo,  the 
entry  at  the  custom-house,  and  the  payment  of  such  duties  as 
the  law  of  the  place  requires,  are  necessary  ingredients  in  a  genu- 
ine importation;  the  true  purpose  of  the  owner  cannot  be  ef- 
fected without  them.  But  in  a  fictitious  importation  they  are 
mere  voluntary  ceremonies,  which  have  no  natural  connection 
whatever  with  the  purpose  of  sending  on  the  cargo  to  another 
market,  and  which,  therefore,  would  never  be  resorted  to  by  a 
person  entertaining  that  purpose,  except  with  a  view  of  giving 
to  the  voyage  which  he  has  resolved  to  continue,  the  appearance 
of  being  broken  by  an  importation,  which  he  has  resolved  not 
really  to  make. 

Now,  what  is  the  case  immediately  before  us?  The  cargo  in 
question  was  taken  on  board  at  Laguira.  It  was  at  the  time  of 
the  capture  proceeding  to  Spain;  but  the  ship  had  touched  at 
an  American  port.  The  cargo  was  landed  and  entered  at  the 
custom-house,  and  a  bond  was  given  for  the  duties  to  the  amount 
of  1,239  dollars.  The  cargo  was  re-shipped,  and  a  debenture 
for  1,211  dollars  by  way  of  drawback  was  obtained.  All  this 
passed  in  the  course  of  a  few  days.  The  vessel  arrived  at 
Marblehead  on  the  29th  of  May;  on  that  day  the  bond  for  se- 
curing the  duties  was  given.  On  the  30th  and  31st  the  goods 
were  landed,  weighed,  and  packed.  The  permit  to  ship  them 
is  dated  the  1st  of  June,  and  on  the  3d  of  June  the  vessel  is 
cleared  out  as  laden,  and  ready  to  proceed  to  sea.  We  are 


728  CONTINUOUS  VOYAGE  OR  ENEMY  DESTINATION. 

frequently  obliged  to  collect  the  purpose  from  the  circumstances 
of  the  transaction.  The  landing  thus  almost  instantaneously 
followed  by  the  re-shipment,  has  little  appearance  of  having 
been  made  with  a  view  to  actual  importation ;  but  it  is  not  upon 
inference  that  the  conclusion  in  this  case  is  left  to  rest.  The 
claimants  instead  of  shewing  that  they  really  did  import  their 
cargo,  have,  in  their  attestation,  stated  the  reasons  which  de- 
termined them  not  to  import  it.  They  say  indeed,  that  when 
they  ordered  it  to  be  purchased,  "it  was  with  the  single  view  of 
bringing  it  to  the  United  States,  and  that  they  had  no  in- 
tention or  expectation  of  exporting  it  in  the  said  schooner  to 
Spain."  Supposing  that  from  this  somewhat  ambiguous  state- 
ment we  are  to  collect  that  their  original  intention  was  to  have 
imported  this  cargo  into  America,  with  a  view  only  to  the  Amer- 
ican market,  yet  their  intention  had  been  changed  before  the 
arrival  of  the  vessel.  For  they  state  that  in  the  beginning  of 
May  they  had  received  accounts  of  the  prices  of  cocoa  in  Spain, 
which  satisfied  them  that  it  would  sell  much  better  there  than 
in  America,  and  that  they  had  therefore  determined  to  send  it 
to  the  Spanish  market.  Nothing  is  alledged  to  have  happened  be- 
tween the  landing  of  the  cargo  and  its  reshipment,  that  could 
have  the  least  influence  on  their  determination.  It  was  not 
in  that  short  interval  that  American  prices  fell,  or  that  informa- 
tion of  the  higher  prices  in  Spain  had  been  received.  Knowing 
beforehand  the  comparative  state  of  the  two  markets,  they 
neither  tried  nor  meant  to  try  that  of  America,  but  proceeded 
with  all  possible  expedition  to  go  through  the  forms  which  have 
been  before  enumerated.  If  the  continuity  of  the  voyage  re- 
mains unbroken,  it  is  immaterial  whether  it  be  by  the  prosecu- 
tion of  an  original  purpose  to  continue  it,  as  in  the  case  of  the 
Essex,  or,  as  in  this  case,  by  the  relinquishment  of  an  original 
purpose  to  have  brought  it  to  a  termination  in  America.  It  can 
never  be  contended,  that  an  intention  to  import  once  entertained 
is  equivalent  to  importation.  And  it  would  be  a  contradiction 
in  terms  to  say  that  by  acts  done  after  their  original  intention 
has  been  abandoned,  such  original  intention  has  been  carried 
into  execution.  Why  should  a  cargo,  which  there  was  to  be*  no 
attempt  to  sell  in  America,  have  been  entered  at  an  American 
custom-house,  and  voluntarily  subjected  to  the  payment  of  any, 
even  the  most  trifling  duty?  Not  because  an  importation  was, 
or  in  such  a  case  could  be  intended,  but  because  it  was  thought 
expedient  that  something  should  be  done,  which  in  a  British 


THE  SPRINGBOK.  729 

Prize  Court  might  pass  for  importation.  Indeed  the  claimants 
seem  to  have  conceived  that  the  enquiry  to  be  made  here  was, 
not,  whether  the  importation  was  real  or  pretended,  but  whether 
the  pretence  had  assumed  a  particular  form,  and  was  accom- 
panied with  certain  circumstances  which  by  some  positive  rule 
were,  in  all  cases,  to  stand  for  importation,  or  to  be  conclusive 
evidence  of  it.  ... 

But  supposing  that  we  had  uniformly  held  that  payment  of 
the  import  duties  furnished  conclusive  evidence  of  importa- 
tion, would  there  have  been  any  inconsistency  or  contradiction 
in  holding  that  the  mere  act  of  giving  a  bond  for  an  amount  of 
duties,  of  which  only  a  very  insignificant  part  was  ever  to  be 
paid,  could  not  have  the  same  effect  as  the  actual  payment  of 
such  amount?  The  further  proof  in  the  Essex  first  brought 
distinctly  before  us  the  real  state  of  the  fact  in  this  particular. 
It  has  been  already  mentioned  that  we  had  called  for  an  account 
of  the  drawbacks,  if  any,  that  had  been  received.  This  pro- 
duced the  information  that  although  the  duties  secured  amount- 
ed to  5,278  dollars,  yet  a  debenture  was  immediately  afterwards 
given  for  no  less  than  5,080  dollars;  so  that  on  that  valuable 
cargo  no  more  than  198  dollars  would  be  ultimately  payable, 
which  sum  is  said  to  be  more  than  compensated  by  the  advantage 
arising  from  the  negotiability  of  the  debenture.  .  .  . 

The  consequence  is  that  the  voyage  was  illegal,  and  that  the 
sentence  of  condemnation  must  be  affirmed. 


THE  SPRINGBOK. 

SUPREME  COURT  OF  THE  UNITED  STATES.    1866. 
5  Wallace,  1. 

Appeal  from  a  decree  of  the  District  Court  of  the  United 
States  for  the  Southern  District  of  New  York. 

[The  British  boat  Springbok,  commanded  by  the  son  of  one 
of  its  owners,  was  chartered  in  November,  1862,  to  T.  S.  Begbie 
of  London  to  take  a  cargo  of  merchandise  and  therewith  "pro- 
ceed to  Nassau,  or  as  near  thereunto  as  she  may  safely  get,  and 
deliver  same."  The  brokers  charged  with  the  lading,  acting 
for  Isaac,  Campbell  &  Co.,  instructed  the  master  in  December, 


730  CONTINUOUS  VOYAGE  OR  ENEMY  DESTINATION. 

1862,  "You  will  proceed  at  once  to  the  port  of  Nassau,  N.  P., 
and  on  arrival  report  yourself  to  Mr.  B.  W.  Hart  there,  who  will 
give  you  .orders  as  to  the  delivery  of  your  cargo."  By  the  bills 
of  lading  the  cargo  was  made  deliverable  to  order  or  assigns. 
The  Springbok  was  captured  February  3,  1863  by  an  American 
war  vessel  about  150  miles  from  Nassau,  which  it  was  a  matter 
of  common  knowledge  was  then  used  as  a  port  for  the  transship- 
ment of  cargoes  destined  for  blockaded  ports  in  the  Southern 
States.  At  the  hearing  in  the  District  Court  evidence  intro- 
duced in  the  cases  of  the  Stephen  Hart  captured  January  28, 
1863  and  the  Gertrude  captured  April  16,  1863,  was  invoked 
whereby  it  appeared  that  the  cargoes  in  the  three  vessels  con- 
sisted in  whole  or  in  part  of  contraband  and  were  owned  largely 
by  the  same  persons.  In  the  case  of  the  Springbok,  the  District 
Court  condemned  both  the  ship  and  the  cargo.] 

The  CHIEF  JUSTICE  [CHASE]  delivered  the  opinion  of  the 
court.  .  .  . 

We  have  already  held  in  the  case  of  the  Bermuda  [(1865),  3 
Wallace,  514] ,  where  goods,  destined  ultimately  for  a  belligerent 
port,  are  being  conveyed  between  two  neutral  ports  by  a  neutral 
ship,  under  a  charter  made  in  good  faith  for  that  voyage,  and 
without  any  fraudulent  connection  on  the  part  of  her  owners 
with  the  ulterior  destination  of  the  goods,  that  the  ship,  though 
liable  to  seizure  in  order  to  the  confiscation  of  the  goods,  is  not 
liable  to  condemnation  as  prize.  We  think  that  the  Springbok 
fairly  comes  within  this  rule.  .  .  . 

The  case  of  the  cargo  is  quite  different  from  that  of  the  ship. 

The  bills  of  lading  disclosed  the  contents  of  six  hundred  and 
nineteen,  but  concealed  the  contents  of  thirteen  hundred  and 
eighty-eight,  of  the  two  thousand  and  seven  packages  which 
made  up  the  cargo.  Like  those  in  the  Bermuda  case  they  named 
no  consignee,  but  required  the  cargo  to  be  delivered  to  order  or 
assigns.  The  manifest  of  the  cargo  also,  like  that  in  the  Ber- 
muda case,  mentioned  no  consignee,  but  described  the  cargo  as 
delivered  to  order.  Unlike  those  bills  and  that  manifest,  how- 
ever, these  concealed  the  names  of  the  real  owners  as  well  as  the 
contents  of  more  than  two-thirds  of  the  packages. 

Why  were  the  contents  of  the  packages  concealed  ?  The  own- 
ers knew  that  they  were  going  to  a  port  in  the  trade  with  which 
the  utmost  candor  of  statement  might  be  reasonably  required. 


THE  SPRINGBOK.  731 

The  adventure  was  undertaken  several  months  after  the  publi- 
cation of  the  answer  of  Earl  Russell  to  the  Liverpool  shipown- 
ers. ...  In  that  answer  the  British  foreign  secretary  had 
spoken  of  allegations  by  the  American  government,  that  ships 
had  been  sent  from  England  to  America  with  fixed  purpose  to 
run  the  blockade,  and  that  arms  and  ammunition  had  thus  been 
conveyed  to  the  Southern  States  to  aid  them  in  the  war ;  and  he 
had  confessed  his  inability  either  to  deny  the  allegations  or  to 
prosecute  the  offenders  to  conviction ;  and  he  had  then  distinctly 
informed  the  Liverpool  memorialists  that  he  could  not  be  sur- 
prised that  the  cruisers  of  the  United  States  should  watch  with 
vigilance  a  port  which  was  said  to  be  the  great  entrepot  of  this 
commerce.  For  the  concealment  of  the  character  of  a  cargo 
shipped  for  that  entrepot,  after  such  a  warning,  no  honest  rea- 
son can  be  assigned.  The  true  reason  must  be  found  in  the  de- 
sign of  the  owners  to  hide  from  the  scrutiny  of  the  American 
cruisers  the  contraband  character  of  a  considerable  portion  of 
the  contents  of  those  packages. 

And  why  were  the  names  of  those  owners  concealed  ?  Can  any 
honest  reason  be  given  for  that  ?  None  has  been  suggested.  But 
the  real  motive  of  concealment  appears  at  once  when  we  learn, 
from  the  claim,  that  Isaac,  Campbell  &  Co.,  and  Begbie  were  the 
owners  of  the  cargo  of  the  Springbok,  and  from  the  papers  in- 
volved, that  Begbie  was  the  owner  of  the  steamship  Gertrude, 
laden  in  Nassau  in  April,  1863,  with  a  cargo  corresponding  in 
several  respects  with  that  now  claimed  by  him  and  his  associ- 
ates, and  dispatched  on  a  pretended  voyage  to  St.  John's,  New 
Brunswick,  but  captured  for  unneutral  conduct  and  abandoned 
to  condemnation  without  even  the  interposition  of  a  claim  in  the 
prize  court;  and  when  we  learn  further  from  the  same  papers 
that  Isaac,  Campbell  &  Co.,  were  the  sole  owners  of  the  cargo 
of  the  Stephen  Hart,  consisting  almost  wholly  of  arms  and  muni- 
tions of  war,  and  sent  on  a  pretended  destination  to  Cardenas, 
but  with  a  real  one  for  the  States  in  rebellion.  Clearly  the  true 
motive  of  the  concealment  must  have  been  the  apprehension  of 
the  claimants,  that  the  disclosure  of  their  names  as  owners  would 
lead  to  the  seizure  of  the  ship  in  order  to  the  condemnation  of 
the  cargo. 

We  are  next  to  ascertain  the  real  destination  of  the  cargo,  for 
th'eir  concealments  do  not,  of  themselves,  warrant  condemnation. 
If  the  real  intention  of  the  owners  was  that  the  cargo  should  be 
landed  at  Nassau  and  incorporated  by  real  sale  into  the  common 


732  CONTINUOUS  VOYAGE  OR  ENEMY  DESTINATION. 

stock  of  the  island,  it  must  be  restored,  notwithstanding  this 
misconduct. 

What  then  was  this  real  intention?  That  some  other  destina- 
tion than  Nassau  was  intended  may  be  inferred,  from  the  fact 
that  the  consignment,  shown  by  the  bills  of  lading  and  the  mani- 
fest, was  to  order  or  assigns.  Under  the  circumstances  of  this 
trade,  already  mentioned,  such  a  consignment  must  be*  taken  as 
a  negation  that  any  sale  had  been  made  to  any  one  in  Nassau. 
It  must  also  be  taken  as  a  negation  that  any  such  sale  was  in- 
tended to  be  made  there;  for  had  such  sale  been  intended,  it  is 
most  likely  that  the  goods  would  have  been  consigned  for  that 
purpose  to  some  established  house  named  in  the  bills  of  lading. 

This  inference  is  strengthened  by  the  letter  of  Speyer  &  Hay- 
wood  to  the  master,  when  about  to  sail  from  London.  That 
letter  directs  him  to  report  to  B.  W.  Hart,  the  agent  of  the 
charterers  at  Nassau,  and  receive  his  instructions  as  to  the  de- 
livery of  the  cargo.  The  property  in  it  was  to  remain  unchanged 
upon  delivery.  The  agent  was  to  receive  it  and  execute  the  in- 
structions of  his  principals. 

What  these  instructions  were  may  be  collected,  in  part,  from 
the  character  of  the  cargo. 

A  part  of  it,  small  in  comparison  with  the  whole,  consisted  of 
arms  and  munitions  of  war,  contraband  within  the  narrowest 
definition.  Another  and  somewhat  larger  portion  consisted  of 
articles  useful  and  necessary  in  war,  and  therefore  contraband 
within  the  construction  of  the  American  and  English  prize 
courts.  These  portions  being  contraband,  the  residue  of  the 
cargo,  belonging  to  the  same  owners,  must  share  their  fate.  The 
Immanuel,  2  Robinson,  196;  Carrington  v.  Merchants'  Insur- 
ance Co.,  8  Peters,  495. 

But  we  do  not  now  refer  to  the  character  of  the  cargo  for  the 
purpose  of  determining  whether  it  was  liable  to  condemnation  as 
contraband,  but  for  the  purpose  of  ascertaining  its  real  destina- 
tion; for,  we  repeat,  contraband  or  not,  it  could  not  be  con- 
demned, if  really  destined  for  Nassau  and  not  beyond;  and, 
contraband  or  not,  it  must  be  condemned  if  destined  to  any 
rebel  port,  for  all  rebel  ports  were  under  blockade. 

Looking  at  the  cargo  with  this  view,  we  find  that  a  part  of  it 
was  specially  fitted  for  use  in  the  rebel  military  service,  and  a 
J^arger  part,  though  not  so  specially  fitted,  was  yet  well  adapted 
to  such  use.  Under  the  first  head  we  include  the  sixteen  dozen 
swords,  and  the  ten  dozen  rifle-bayonets,  and  the  forty-five  thou- 


THE  SPRINGBOK.  733 

sand  navy  buttons  [marked  "C.  S.  N."],  and  the  one  hundred 
and  fifty  thousand  army  buttons  [marked  "A",  or  "I",  or 
"C,"]  ;  and,  under  the  latter,  the  seven  bales  of  army  cloth  and 
the  twenty  bales  of  army  blankets  and  other  similar  goods.  We 
cannot  look  at  such  a  cargo  as  this,  and  doubt  that  a  considerable 
portion  of  it  was  going  to  the  rebel  States,  where  alone  it  could 
be  used ;  nor  can  we  doubt  that  the  whole  cargo  had  one  destina- 
tion. 

Now  if  this  cargo  was  not  to  be  carried  to  its  ultimate  destina- 
tion by  the  Springbok  (and  the  proof  does  not  warrant  us  in 
saying  that  it  was),  the  plan  must  have  been  to  send  it  forward 
by  transshipment.  And  we  think  it  evident  that  such  was  the 
purpose.  We  have  already  referred  to  the  bills  of  lading,  the 
manifest,  and  the  letter  of  Speyer  &  Haywood,  as  indicating 
this  intention ;  and  the  same  inference  must  be  drawn  from  the 
disclosures  by  the  invocation,  that  Isaac,  Campbell  &  Co.  had 
before  supplied  military  goods  to  the  rebel  authorities  by  indi- 
rect shipment,  and  that  Begbie  was  owner  of  the  Gertrude  and 
engaged  in  the  business  of  running  the  blockade. 

If  these  circumstances  were  insufficient  grounds  for  a  satis- 
factory conclusion,  another  might  be  found  in  the  presence  of 
the  Gertrude  in  the  harbor  of  Nassau  with  undenied  intent  to 
run  the  blockade,  about  the  time  when  the  arrival  of  the  Spring- 
bok was  expected  there.  It  seems  to  us  extremely  probable  that 
she  had  been  sent  to  Nassau  to  await  the  arrival  of  the  Spring- 
bok and  to  convey  her  cargo  to  a  belligerent  and  blockaded  port, 
and  that  she  did  not  so  convey  it,  only  because  the  voyage  was 
intercepted  by  the  capture. 

All  these  condemnatory  circumstances  must  be  taken  in  con- 
nection with  the  fraudulent  concealment  attempted  in  the  bills 
of  lading  and  the  manifest,  and  with  the  very  remarkable  fact 
that  not  only  has  no  application  been  made  by  the  claimants 
for  leave  to  take  further  proof  in  order  to  furnish  some  explana- 
tion of  these  circumstances,  but  that  no  claim,  sworn  to  person- 
ally, by  either  of  the  claimants,  has  ever  been  filed. 

Upon  the  whole  case  we  cannot  doubt  that  the  cargo  was 
originally  shipped  with  intent  to  violate  the  blockade;  that  the 
owners  of  the  cargo  intended  that  it  should  be  transshipped  at 
Nassau  into  some  vessel  more  likely  to  succeed  in  reaching  safely 
a  blockaded  port  than  the  Springbok :  that  the  voyage  from  Lon- 
don to  the  blockaded  port  was,  as  to  cargo,  both  in  law  and  in 
the  intent  of  the  parties,  one  voyage;  and  that  the  liability  to 


I 
734  CONTINUOUS  VOYAGE  OR  ENEMY  DESTINATION. 

condemnation,  if  captured  during  any  part  of  that  voyage,  at- 
tached to  the  cargo  from  the  time  of  sailing. 

The  decree  of  the  District  Court  must,  therefore,  be  reversed 
as  to  the  ship     .     .     .     and  must  be  affirmed  as  to  the  cargo. 


NOTE. — No  other  decision  of  an  American  prize  court,  or  perhaps 
of  any  prize  court,  has  ever  been  so  harshly  condemned  or  so  strik- 
ingly vindicated  as  has  the  decision  in  The  Springbok.  The  In- 
stitute of  International  Law  in  1882  submitted  the  principles  involved 
to  a  committee  composed  of  such  distinguished  jurists  as  Arntz,  As- 
ser,  Bulmerincq,  Gessner,  Hall,  De  Martens,  Pierantoni,  Renault,  Rolin, 
and  Sir  Travers  Twiss,  and  representing  most  of  the  great  maritime 
Powers,  which  denounced  the  decision  as  one  tending  to  annihilate 
neutral  trade.  Moore,  Digest,  VII,  731.  But  in  1896  the  Institute 
adopted  the  principle  in  this  form: 

A  destination  for  the  enemy  is  presumed  when  the  carriage 
of  the  goods  is  directed  toward  one  of  his  ports  or  toward  a 
neutral  port  which  by  evident  proofs  arising  from  incontest- 
able facts  is  only  a  stage  in  a  carriage  to  the  enemy  as  the 
final  object  of  the  same  commercial  transaction. 

Annuaire  de  VInstitut  de  Droit  International,  1896,  231. 

It  should  be  noted  that  those  who  criticised  the  decision  in  The 
Springbok  generally  insisted  that  the  cargo  was  condemned  on  the 
suspicion  that  it  was  to  be  transshipped  to  some  blockaded  port.  It 
would  require  an  unusually  credulous  mind  to  believe,  in  the  light 
of  all  the  evidence,  that  the  cargo  could  have  had  any  other  destina- 
tion. Furthermore  whether  the  cargo  was  condemned  on  suspicion 
depended  on  the  rules  of  evidence  followed  by  the  court,  and  not  on 
any  principle  of  international  law.  The  owners  of  the  cargo  peti- 
tioned the  British  Government  to  demand  compensation  from  the 
American  Government  for  the  confiscation  of  their  property.  After 
a  careful  study  of  all  the  papers  in  the  case,  the  British  Government 
replied  that  they  would  not  be  "justified,  on  the  materials  before  them, 
in  making  any  claim"  for  compensation.  Moore,  Digest,  VII,  723. 
The  owners  were  again  defeated  when  they  presented  their  case  to 
the  International  Commission  provided  for  by  article  xiii  of  the 
Treaty  of  Washington,  but  damages  were  allowed  for  the  detention 
of  the  vessel.  Moore,  Int.  Arb.  IV,  3928. 


THE  KIM.  735 

THE  KIM.    THE  ALFRED  NOBEL. 
THE    BJORNSTERJNE    BJORNSON.     THE    FRIDLAND. 

ADMIRALTY  DIVISION    (IN  PRIZE)    OF  THE  HIGH   COURT  OF  JUSTICE  OF 

ENGLAND.     1915. 
L.  R.  [1915]  P.  215. 

The  PRESIDENT  (SiR  SAMUEL  EVANS).  The  cargoes  which 
have  been  seized,  and  which  are  claimed  in  these  proceedings, 
were  laden  on  four  steamships  belonging  to  neutral  owners,  and 
were  under  time  charters  to  an  American  corporation,  the  Gans 
Steamship  Line.  .  .  .  The  four  ships  .  .  .  [three  Nor- 
wegian and  one  Swedish]  all  started  within  a  period  of  three 
weeks  in  October  and  November,  1914,  on  voyages  from 
New  York  to  Copenhagen  with  very  large  cargoes  of  lard,  hog 
and  meat  products,  oil  stocks,  wheat  and  other  foodstuffs;  two 
of  them  had  cargoes  of  rubber  and  one  of  hides.  They  were 
captured  on  the  high  seas,  and  their  cargoes  were  seized  on  the 
ground  that  they  were  conditional  contraband,  alleged  to  be 
confiscable  in  the  circumstances,  with  the  exception  of  one  cargo 
of  rubber  which  was  seized  as  absolute  contraband. 

The  Court  is  now  asked  to  deal  only  with  the  cargoes.  All 
questions  relating  to  the  capture  and  confiscability  of  the  ships 
are  left  over  to  be  argued  and  dealt  with  hereafter.  .  .  . 

Before  proceeding  to  state  the  result  of  the  examination  of  the 
facts  relative  to  the  respective  cargoes  and  claims,  a  general  re- 
view may  be  made  of  the  situation  which  led  up  to  the  dispatch  < 
of  the  four  ships  with  their  cargoes  to  a  Danish  port. 

Notwithstanding  the  state  of  war,  there  was  no  difficulty 
in  the  way  of  neutral  ships  trading  to  German  ports  in  the 
North  Sea,  other  than  the  perils  which  Germany  herself  had 
created  by  the  indiscriminate  laying  and  scattering  of  mines  of 
all  description,  uuanchored  and  floating  outside  territorial 
waters  in  the  open  sea  in  the  way  of  the  routes  of  maritime  trade, 
in  defiance  of  international  law  and  the  rules  of  conduct  of 
naval  warfare,  and  in  flagrant  violation  of  the  Hague  Conven- 
tion to  which  Germany  was  a  party.  Apart  from  these  dangers, 
neutral  vessels  could  have,  in  the  exercise  of  their  international 
right,  voyaged  with  their  goods  to  and  from  Hamburg,  Bremen, 
Ernden,  and  any  other  ports  of  the  German  Empire.  There  was 
no  blockade  involving  risk  of  confiscation  of  vessels  running  or 
attempting  to  run  it.  Neutral  vessels  might  have  carried  con< 


736  CONTINUOUS  VOYAGE  OR  ENEMY  DESTINATION. 

ditional  and  absolute  contraband  into  those  ports,  acting  again 
within  their  rights  under  international  law,  subject  only  to  the 
risk  of  capture  by  vigilant  warships  of  this  country  and  its  al- 
lies. But  the  trade  of  neutrals — other  than  the  Scandinavian 
countries  and  Holland — with  German  ports  in  the  North  Sea 
having  been  rendered  so  difficult  as  to  become  to  all  intents  im- 
possible, it  is  not  surprising  that  a  great  part  of  it  should  be 
deflected  to  Scandinavian  ports  from  which  access  to  the  Ger- 
man ports  in  the  Baltic  and  to  inland  Germany  by  overland 
routes  was  available,  and  that  this  deflection  resulted,  the  facts 
universally  known  strongly  testify.  The  neutral  trade  con- 
cerned in  the  present  cases  is  that  of  the  United  States  of  Amer- 
ica; and  the  transactions  which  have  to  be  scrutinized  arose 
from  a  trading,  either  real  and  bona  fide,  or  pretended  and 
ostensible  only,  with  Denmark,  in  the  course  of  which  these 
vessels'  sea  voyages  were  made  between  New  York  and  Copen- 
hagen. 

Denmark  is  a  country  with  a  small  population  of  less  than 
three  millions;  and  is,  of  course,  as  regards  foodstuffs,  an  ex- 
porting, and  not  an  importing  country.  Its  situation,  however, 
renders  it  convenient  to  transport  goods  from  its  territory  to 
German  ports  and  places  like  Hamburg,  Altona,  Liibeck,  Stet- 
tin, and  Berlin. 

The  total  cargoes  in  the  four  captured  ships  bound  for  Copen- 
hagen within  about  three  weeks  amounted  to  73,237,796  Ibs.  in 
weight.  .  .  .  Portions  of  these  cargoes  have  been  released, 
and  other  portions  remain  unclaimed.  The  quantity  of  goods 
claimed  in  these  proceedings  is  very  large.  Altogether  the 
claims  cover  32,312,479  Ibs.  (exclusive  of  the  rubber  and  hides). 
The  claimants  did  not  supply  any  information  as  to  the  quan- 
tities of  similar  products  which  they  had  supplied  or  consigned 
to  Denmark  previous  to  the  war.  Some  illustrative  statistics 
were  given  by  the  Crown,  with  regard  to  lard  of  various  quali- 
ties, which  are  not  without  significance,  and  which  form  a  fair 
criterion  of  the  imports  of  these  and  like  substances  into  Den- 
mark before  the  war;  and  they  give,  a  measure  for  comparison 
with  the  imports  of  lard  consigned  to  Copenhagen  after  the  out- 
break of  war  upon  the  four  vessels  now  before  the  Court. 

The  average  annual  quantity  of  lard  imported  into  Denmark 
during  the  three  years  1911-1913  from  all  sources  was  1,459,000 
Ibs.  The  quantity  of  lard  consigned  to  Copenhagen  on  these 
four  ships  alone  was  19,252,000  Ibs.  Comparing  these  quanti- 


THE  KIM.  737 

ties,  the  result  is  that  these  vessels  were  carrying  towards 
Copenhagen  within  less  than  a  month  more  than  thirteen  times 
the  quantity  of  lard  which  had  been  imported  annually  to  Den- 
mark for  each  of  the  three  years  before  the  war. 

To  illustrate  further  the  change  effected  by  the  war.  it  was 
given  in  evidence  that  the  imports  of  lard  from  the  United 
States  of  America  to  Scandinavia  (or,  more  accurately,  to  parts 
of  Europe  other  than  the  United  Kingdom,  France,  Belgium, 
Germany,  the  Netherlands,  and  Italy)  during  the  months  of 
October  and  November,  1914,  amounted  to  50,647,849  Ibs.  as 
compared  with  854,856  Ibs.  for  the  same  months  in  1913 — show- 
ing an  increase  for  the  two  months  of  49,792,993  Ibs. ;  or  in  other 
words  the  imports  during  these  two  months  in  1914  were  nearly 
sixty  times  those  for  the  corresponding  months  of  1913. 

One  more  illustration  may  be  given  from  statistics  which  were 
given  in  evidence  for  one  of  the  claimants  (Hammond  &  Co.  and 
Swift  &  Co.)  :  In  the  five  months  August-December,  1913,  the 
exports  of  lard  from  the  United  States  of  America  to  Germany 
were  68,664,975  Ibs.  During  the  same  five  months  in  1914  they 
had  fallen  to  a  mere  nominal  quantity,  23,800  Ibs.  On  the  other 
hand,  during  those  periods,  similar  exports  from  the  United 
States  of  America  to  Scandinavian  countries  (including  Malta 
and  Gibraltar,  which  would  not  materially  affect  the  compar- 
ison) rose  from  2,125,579  Ibs.  to  59,694,447  Ibs.  These  facts  give 
practical  certainty  to  the  inference  that  an  overwhelming  pro- 
portion (so  overwhelming  as  to  amount  to  almost  the  whole)  of 
the  consignments  of  lard  in  the  four  vessels  we  are  dealing  with 
was  intended  for,  or  would  find  its  way  into,  Germany.  These, 
however,  are  general  considerations,  important  to  bear  in  mind 
in  their  appropriate  place ;  but  not  in  any  sense  conclusive  upon 
the  serious  questions  of  consecutive  voyages,  of  hostile  quality, 
and  of  hostile  destination,  which  are  involved  before  it  can  be 
determined  whether  the  goods  seized  are  confiscable  as  prize. 
.  .  .  [Here  follows  an  elaborate  analysis  of  the  facts  involved 
in  the  cases  of  the  several  claimants,  in  the  course  of  which  the 
learned  judge  found  that  the  great  bulk  of  the  cargoes  under 
consideration  had  been  shipped  "to  order"  or  to  the  shippers' 
agents.] 

With  regard  to  the  general  character  of  the  cargoes,  evidence 

was  given  by  persons  of  experience  that  all  the  foodstuffs  were 

suitable  for  the  use  of  troops  in  the  field;  that  some,  e.  g.,  the 

49     smoked  meat  or  smoked  bacon,  were  similar  in  kind,  wrapping, 


738  CONTINUOUS  VOYAGE  OR  E^EMY  DESTINATION. 

and  packing  to  what  was  supplied  in  large  quantities  to  the 
British  troops,  and  were  not  ordinarily  supplied  for  civilian 
use ;  that  others,  e.  g.,  canned  or  boiled  beef  in  tins,  were  of  the 
same  brand  and  class  as  had  been  offered  by  Armour  &  Co.  for 
the  use  of  the  British  forces  in  the  field ;  and  that  the  packages 
sent  by  these  ships  could  only  have  been  made  up  for  the  use 
of  troops  in  the  field.  As  against  this,  there  was  evidence  that 
goods  of  the  same  class  had  been  ordinarily  supplied  to  and  for 
civilians. 

As  to  the  lard,  proof  was  given  that  glycerine  (which  is  in 
great  demand  for  the  manufacture  of  nitro-glycerine  for  high 
explosives)  is  readily  obtainable  from  lard.  Although  this  use 
is  possible,  there  was  no  evidence  before  me  that  any  lard  had 
been  so  used  in  Germany;  and  I  am  of  opinion  that  the  lard 
comprised  ought  to  be  treated  upon  the  footing  of  foodstuffs 
only.  It  is  largely  used  in  German  army  rations. 

As  to  the  fat  backs  (of  which  large  quantities  were  shipped), 
there  was  also  proof  that  they  could  be  used  for  the  production 
of  glycerine.  ...  In  fact  no  evidence  .  .  .  was  offered 
for  the  shippers  of  fat  backs.  Mr.  Nuttall,  a  deponent  for  one 
of  them  .  .  .  says  the  fat  backs  shipped  by  them  were  not 
in  a  condition  which  was  suitable  for  eating;  but  he  may  have 
meant  only  that  they  required  further  treatment  before  they 
became  edible. 

There  was  no  market  for  these  fat  backs  in  Denmark.  The 
Procurator-General  deposed  as  a  result  of  inquiries  that  the 
Germans  were  very  anxious  to  obtain  fat  backs  merely  for  the 
glycerine  they  contain.  In  these  circumstances  it  is  not  by  any 
means  clear  that  fat  backs  should  be  regarded  merely  as  food- 
stuffs in  these  cases,  and  in  the  absence  of  evidence  to  the  con- 
trary, it  is  fair  to  treat  them  as  materials  which  might  either 
be  required  as  food,  or  for  the  production  of  glycerine. 

The  convenience  of  Copenhagen  for  transporting  goods  to 
Germany  need  hardly  be  mentioned.  It  is  in  evidence  that  the 
chief  trade  between  Copenhagen  and  Germany  since  the  war 
was  through  Liibeck,  Stettin,  and  Hamburg. 

The  sea-borne  trade  of  Liibeck  has  increased  very  largely  since 
this  war.  It  was  also  sworn  in  evidence  that  Liibeck  was  a 
German  naval  base.  Stettin  is  a  garrison  town,  and  is  the  head- 
quarters of  army  corps.  It  has  also  shipbuilding  yards  where 
warships  are  constructed  and  repaired.  It  is  Berlin's  nearest 
seaport.  It  will  be  remembered  that  one  of  the  big  shipping 


THE  KIM.  739 

companies  asked  a  Danish  firm  to  become  nominal  consignees  for 
goods  destined  for  Stettin.  Hamburg  and  Altona  had  ceased  to 
be  the  commercial  ports  dealing  with  commerce  coming  through 
the  North  Sea.  They  were  the  headquarters  of  various  regi- 
ments. Copenhagen  is  also  a  convenient  port  for  communication 
with  the  German  naval  arsenal  and  fortress  of  Kiel  and  its  canal, 
and  for  all  places  reached  through  the  canal.  These  ports  may 
properly  be  regarded,  in  my  opinion,  as  bases  of  supply  for  the 
enemy,  and  the  cargoes  destined  for  these  might  on  that  short 
ground  be  condemned  as  prize;  but  I  refer,  especially  as  no 
particular  cargo  can  definitely  be  said  to  be  going  to  a  particular 
port,  to  deal  with  the  cases  upon  broader  grounds. 

Before  stating  the  inferences  and  conclusions  of  fact,  it  will 
be  convenient  to  investigate  and  ascertain  the  legal  principles 
which  are  to  be  applied  according  to  international  law,  in  view 
of  the  state  of  things  as  they  were  in  the  year  1914. 

While  the  guiding  principles  of  the  law  must  be  followed,  it 
is  a  truism  to  say  that  international  law,  in  order  to  be  adequate, 
as  well  as  just,  must  have  regard  to  the  circumstances  of  the 
times,  including  "the  circumstances  arising  out  of  the  particu- 
lar situation  of  the  war,  or  the  condition  of  the  parties  engaged 
in  it:"  vide  The  Jonge  Margaretha  (1799),  1  C.  Rob.  189,  and 
Chancellor  Kent's  Commentaries,  p.  139. 

Two  important  doctrines  familiar  to  international  law  coine 
prominently  forward  for  consideration:  the  one  is  embodied  in 
the  rule  as  to  "  continuous  voyage, ' '  or  continuous  ' '  transporta- 
tion"; the  other  relates  to  the  ultimate  hostile  destination  of 
conditional  and  absolute  contraband  respectively. 

The  doctrine  of  "continuous  voyage,"  was  first  applied  by 
the  English  Prize  Courts  to  unlawful  trading.  There  is  no  re- 
ported case  in  our  Courts  where  the  doctrine  is  applied  in  terms 
to  the  carriage  of  contraband;  but  it  was  so  applied  and  ex- 
tended by  the  United  States  Courts  against  this  country  in  the 
time  of  the  American  Civil  War ;  and  its  application  was  acceded 
to  by  the  British  Government  of  the  day:  and  was.  moreover, 
acted  upon  by  the  International  Commission  which  sat  under 
the  Treaty  between  this  country  and  America,  made  at  Washing- 
ton on  May  8,  1871,  when  the  commission,  composed  of  an 
Italian,  an  American,  and  a  British  delegate,  unanimously  dis- 
allowed the  claims  in  The  Peterhoff,  (1866),  5  Wallace,  28, 
which  was  the  leading  case  upon  the  subject  of  continuous  trans 
portatioii  in  relation  to  contraband  goods.  .  .  . 


740  CONTINUOUS  VOYAGE  OR  ENEMY  DESTINATION. 

I  am  not  going  through  the  history  of  it,  but  the  doctrine  was 
asserted  by  Lord  Salisbury  at  the  time  of  the  South  African  war 
with  reference  to  German  vessels  carrying  goods  to  Delagoa 
Bay,  and  as  he  was  dealing  with  Germany,  he  fortified  himself 
by  referring  to  the  view  of  Bluntschli  as  the  true  view  as  fol- 
lows: "If  the  ship  or  goods  are  sent  to  the  destination  of  a 
neutral  port  only  the  better  to  come  to  the  aid  of  the  enemy, 
these  will  be  contraband  of  war,  and  confiscation  will  be  justi- 
fied." 

It  is  essential  to  appreciate  that  the  foundation  of  the  law  of 
contraband,  and  the  reason  for  the  doctrine  of  continuous  voy- 
age which  has  been  grafted  into  it,  is  the  right  of  a  belligerent  to 
prevent  certain  goods  from  reaching  the  country  of  the  enemy 
for  his  military  use.  Neutral  traders,  in  their  owji  interest,  set 
limits  to  the  exercise  of  this  right  as  far  as  they  can.  These  con- 
flicting interests  of  neutrals  and  belligerents  are  the  causes  of 
the  contests  which  have  taken  place  upon  the  subject  of  con- 
traband and  continuous  voyages. 

A  compromise  was  attempted  by  the  London  Conference  in 
the  unratified  Declaration  of  London.  The  doctrine  of  continu- 
ous voyage  or  continuous  transportation  was  conceded  to  the  full 
by  the  conference  in  the  case  of  absolute  contraband,  and  it  was 
expressly  declared  that  "it  is  immaterial  whether  the  carriage  of 
the  goods  is  direct,  or  entails  transshipment,  or  a  subsequent 
transport  by  land." 

As  to  conditional  contraband,  the  attempted  compromise  was 
that  the  doctrine  was  excluded  in  the  case  of  conditional  con- 
traband, except  when  the  enemy  country  had  no  seaboard.  As 
is  usual  in  compromises,  there  seems  to  be  an  absence  of  logical 
reason  for  the  exclusion.  If  it  is  right  that  a  belligerent  should 
be  permitted  to  capture  absolute  contraband  proceeding  by  vari- 
ous voyages  or  transport  with  an  ultimate  destination  for  the 
enemy  territory,  why  should  he  not  be  allowed  to  capture  goods 
which  though  not  absolutely  contraband,  become  contraband  by 
reason  of  a  further  destination  to  the  enemy  Government  or  its 
armed  forces?  And  with  the  facilities  of  transportation  by 
sea  and  by  land  which  now  exist  the  right  of  a  belligerent  to 
capture  conditional  contraband  would  be  of  a  very  shadowy 
value  if  a  mere  consignment  to  a  neutral  port  were  sufficient 
to  protect  the  goods.  It  appears  also  to  be  obvious  that  in  these 
days  of  easy  transit,  if  the  doctrine  of  continuous  voyage  or 
continuous  transportation  is  to  hold  at  all,  it  must  cover  not  only 


THE  KIM.  741 

voyages  from  port  to  port  at  sea,  but  also  transport  by  land, 
until  the  real,  as  distinguished  from  the  merely  ostensible,  des- 
tination of  the  goods  is  reached. 

In  connection  with  this  subject,  note  may  be  taken  of  the 
communication  of  January  20,  1915,  from  Mr.  Bryan,  as  Secre- 
tary of  State  for  the  United  States  Government,  to  Mr.  Stone, 
of  the  Foreign  Relations  Committee  of  the  Senate.  It  is,  indeed, 
a  State  document.  In  it  the  Secretary  of  State,  dealing  with  ab- 
solute and  conditional  contraband,  puts  on  record  the  following 
as  the  views  of  the  United  States  Government : — 

"The  rights  and  interests  of  belligerents  and  neutrals  are 
opposed  in  respect  to  contraband  articles  and  trade. 
The  record  of  the  United  States  in  the  past  is  not  free  from 
criticism.  When  neutral,  this  Government  has  stood  for  a  re- 
stricted list  of  absolute  and  conditional  contraband.  As  a  bellig- 
erent, we  have  contended  for  a  liberal  list,  according  to  our  con- 
ception of  the  necessities  of  the  case. 

' '  The  United  States  has  made  earnest  representations  to  Great 
Britain  in  regard  to  the  seizure  and  detention  of  all  American 
ships  or  cargoes  bona  fide  destined  to  neutral  ports.  ...  It 
will  be  recalled,  however,  that  American  Courts  have  established 
various  rules  bearing  on  these  matters.  The  rule  of  'continuous 
voyage'  has  been  not  only  asserted  by  American  tribunals,  but 
extended  by  them.  They  have  exercised  the  right  to  determine 
from  the  circumstances  whether  the  ostensible  was  the  real 
destination.  They  have  held  that  the  shipment  of  articles  of 
contraband  to  a  neutral  port  'to  order'  [this  was  of  course  be- 
fore the  Order  in  Council  of  October  29],  from  which,  as  a  mat- 
ter of  fact,  cargoes  had  been  transshipped  to  the  enemy,  is 
corroborative  evidence  that  the  cargo  is  really  destined  to  the 
enemy  instead  of  to  the  neutral  port  of  delivery.  It  is  thus' 
seen  that  some  of  the  doctrines  which  appear  to  bear  harshly 
upon  neutrals  at  the  present  time  are  analogous  to  or  outgrowths 
from  policies  adopted  by  the  United  States  when  it  was  a  bellig- 
erent. The  Government,  therefore,  cannot  consistently  protest 
against  the  application  of  rules  which  it  has  followed  in  the  past, 
unless  they  have  not  been  practiced  as  heretofore.  .  .  .  The 
fact  that  the  commerce  of  the  United  States  is  interrupted  by 
Great  Britain  is  consequent  upon  the  superiority  of  her  navy  on 
the  high  seas.  History  shows  that  whenever  a  country  has  pos- 
sessed the  superiority  our  trade  has  been  interrupted,  and  that 
few  articles  essential  to  the  prosecution  of  the  war  have  been 


742  CONTINUOUS  VOYAGE  OR  ENEMY  DESTINATION. 

allowed  to  reach  its  enemy  from  this  country."    .    .    . 

I  have  no  hesitation  in  pronouncing  that,  in  my  view,  the 
doctrine  of  continuous  voyage,  or  transportation,  both  in  rela- 
tion to  carriage  by  sea  and  to  carriage  over  land,  had  become 
part  of  the  law  of  nations  at  the  commencement  of  the  present 
war,  in  accordance  with  the  principles  of  recognized  legal  de- 
cisions, and  with  the  view  of  the  great  body  of  modern  jurists, 
and  also  with  the  practice  of  nations  in  recent  maritime  warfare. 

The  result  is  that  the  Court  is  not  restricted  in  its  vision  to  the 
primary  consignments  of  the  goods  in  these  cases  to  the  neutral 
port  of  Copenhagen;  but  is  entitled,  and  bound,  to  take  a  more 
extended  outlook  in  order  to  ascertain  whether  this  neutral 
destination  was  merely  ostensible  and,  if  so,  what  the  real  ulti- 
mate destination  was. 

As  to  the  real  destination  of  a  cargo,  one  of  the  chief  tests  is 
whether  it  was  consigned  to  the  neutral  port  to  be  there  deliv- 
ered for  the  purpose  of  being  imported  into  the  common  stock  of 
the  country.  .  .  .  [The  learned  judge  here  cites  The  William 
(1806),  5  C.  Rob.,  385,  and  The  Bermuda,  (1865),  3  Wallace, 
514.]  Another  circumstance  which  has  been  regarded  as  im- 
portant in  determining  the  question  of  real  or  ostensible  des- 
tination at  the  neutral  port  was  the  consignment  "to  order  or 
assigns"  without  naming  any  consignee.  In  the  celebrated  case 
of  The  Springbok  (1866),  5  Wallace,  1,  the  Supreme  Court  of 
the  United  States  acted  upon  inferences  as  to  destination  (in  the 
case  of  blockade)  on  this  very  ground.  .  .  .  The  same  cir- 
cumstance was  also  similarly  dealt  with  in  The  Bermuda  (1865), 
3  Wallace,  514,  and  in  The  Peterhoff  (1866),  5  Wallace,  28. 

I  am  not  unmindful  of  the  argument  that  consignment  "to 
order"  is  common  in  these  days.  But  a  similar  argument  was 
used  in  The  Springbok,  supported  by  the  testimony  of  some  of 
the  principal  brokers  in  London,  to  the  effect  that  a  consignment 
"to  order  or  assign"  was  the  usual  and  regular  form  of  con- 
signment to  an  agent  for  sale  at  such  a  port  as  Nassau.  .  .  . 
The  argument  still  remains  good,  that  if  shippers,  after  the  out- 
break of  war,  consign  goods  of  the  nature  of  contraband  to  their 
own  order  without  naming  a  consignee,  it  may  be  a  circumstance 
of  suspicion  in  considering  the  question  whether  the  goods  were 
really  intended  for  the  neutral  destination,  and  to  become  part 
of  the  common  stock  of  the  neutral  country,  or  whether  they  had 
another  ultimate  destination.  Of  course,  it  is  not  conclusive. 
The  suspicion  arising  from  this  form  of  consignment  during  war 


THE  KIM.  743 

might  be  dispelled  by  evidence  produced  by  the  shippers.    .    .    . 

Upon  this  branch  of  the  case — for  reasons  which  have  been 
given  when  dealing  with  the  consignments  generally,  and  when 
stating  the  circumstances  with  respect  to  each  claim — I  have 
no  hesitation  in  stating  my  conclusion  that  the  cargoes  (other 
than  the  small  portions  acquired  by  persons  in  Scandinavia 
whose  claims  are  allowed)  were  not  destined  for  consumption  or 
use  in  Denmark  or  intended  to  be  incorporated  into  the  general 
stock  of  that  country  by  sale  or  otherwise ;  that  Copenhagen  was 
not  the  real  bona  fide  place  of  delivery;  but  that  the  cargoes 
were  on  their  way  at  the  time  of  capture  to  German  territory  as 
their  actual  and  real  destination.  .  .  . 

Having  decided  that  the  cargoes,  though  ostensibly  destined 
for  Copenhagen,  were  in  reality  destined  for  Germany,  the  ques- 
tion remains  whether  their  real  ultimate  destination  was  for  the 
use  of  the  German  Government  or  its  naval  or  military  forces. 

If  the  goods  were  destined  for  Germany,  what  are  the  facts 
and  the  law  bearing  upon  the  question  whether  they  had  the 
further  hostile  destination  for  the  German  Government  for 
military  use? 

In  the  first  place,  as  has  already  been  pointed  out,  they  were 
goods  adapted  for  such  use;  and  further,  in  part,  adapted  for 
immediate  warlike  purposes  in  the  sense  that  some  of  them  could 
be  employed  for  the  production  of  explosives.  They  were  des- 
tined, too,  for  some  of  the  nearest  German  ports  like  Hamburg, 
Liibeck,  and  Stettin,  where  some  of  the  forces  were  quartered, 
and  whose  connection  with  the  operations  of  war  has  been  stated. 
It  is  by  no  means  necessary  that  the  Court  should  be  able  to  fix 
the  exact  port:  see  The  Dolphin  (1863),  7  Fed.  Cases,  868;  The 
Pearl  (1866),  5  Wallace,  574;  The  Peterhoff  (1866),  5  Wallace, 
28,  59. 

Regard  must  also  be  had  to  the  state  of  things  in  Germany 
during  this  war  in  relation  to  the  military  forces,  and  to  the 
civil  population,  and  to  the  method  described  in  evidence  which 
was  adopted  by  the  Government  in  order  to  procure  supplies  for 
the  forces. 

The  general  situation  was  described  by  the  British  Foreign 
Secretary  in  his  Note  to  the  American  Government  on  February 
10,  1915,  as  follows  :— 

"The  reason  for  drawing  a  distinction  between  foodstuffs  in- 
tended for  the  civil  population  and  those  for  the  armed  forces 
or  enemy  Government  disappears  when  the  distinction  between 


744  CONTINUOUS  VOYAGE  OR  ENEMY  DESTINATION. 

the  civil  population  and  the  armed  forces  itself  disappears.  In 
any  country  in  which  there  exists  such  a  tremendous  organiza- 
tion for  war  as  now  obtains  in  Germany,  there  is  no  clear  di- 
vision between  those  whom  the  Government  is  responsible  for 
feeding  and  those  whom  it  is  not.  Experience  shows  that  the 
power  to  requisition  will  be  used  to  the  fullest  extent  in  order  to 
make  sure  that  the  wants  of  the  military  are  supplied,  and  how- 
ever much  goods  may  be  imported  for  civil  use  it  is  by  the  mili- 
tary that  they  will  be  consumed  if  military  exigencies  require  it, 
especally  now  that  the  German  Government  have  taken  control 
of  all  the  foodstuffs  in  the  country." — I  am  not  saying  that  the 
last  sentence  is  applicable  to  the  circumstances  of  this  case. — 

"In  the  peculiar  circumstances  of  the  present  struggle  where 
the  forces  of  the  enemy  comprise  so  large  a  proportion  of  the 
population,  and  where  there  is  so  little  evidence  of  shipments 
on  private  as  distinguished  from  Government  account,  it  is  most 
reasonable  that  the  burden  of  proof  should  rest  upon  claim- 
ants." 

It  was  given  in  evidence  that  about  ten  millions  of  men  were 
either  serving  in  the  Germany  army,  or  dependent  upon  or  un- 
der the  control  of  the  military  authorities  of  the  German 
Government,  out  of  a  population  of  between  65  and  70  millions 
of  men,  women,  and  children.  Of  the  food  required  for  the 
population,  it  would  not  be  extravagant  to  estimate  that  at  least 
one-fourth  would  be  consumed  by  these  10  million  adults. 

Apart  altogether  from  the  special  adaptability  of  these  car- 
goes for  the  armed  forces,  and  the  highly  probable  inference  that 
they  were  destined  for  the  forces,  even  assuming  that  they  were 
indiscriminately  distributed  between  the  military  and  civilian 
population,  a  very  large  proportion  would  necessarily  be  used 
by  the  military  forces.  .  .  . 

Now  as  to  the  question  of  the  proof  of  intention  on  the  part 
of  the  shippers  of  the  cargoes. 

It  was  argued  that  the  Crown  as  captors  out  to  show  that 
there  was  an  original  intention  by  the  shippers  to  supply  the 
goods  to  the  enemy  Government  or  the  armed  forces  at  the  in- 
ception of  the  voyage  as  one  complete  commercial  transaction, 
evidenced  by  a  contract  of  sale  or  something  equivalent  to  it. 

It  is  obvious  from  a  consideration  of  the  whole  scheme  of 
conduct  of  the  shippers  that  if  they  had  expressly  arranged  to 
consign  the  cargoes  to  the  German  Government  for  the  armed 


THE  KIM.  745 

forces,  this  would  have  been  done  in  such  a  way  as  to  make  it 
as  difficult  as  possible  for  belligerents  to  detect  it.  If  the  captors 
had  to  prove  such  an  arrangement  affirmatively  and  absolutely, 
in  order  to  justify  capture  and  condemnation,  the  rights  of 
belligerents  to  stop  articles  of  conditional  contraband  from 
reaching  the  hostile  destination  would  become  nugatory.  .  .  . 

It  is  not  necessary  that  an  intention  at  the  commencement  of 
the  voyage  should  be  established  by  the  captors  cither  absolutely 
or  by  inference.  .  .  .  If  at  the  time  of  the  seizure  the  goods 
were  in  fact  on  their  way  to  the  enemy  Government  or  its  forces 
as  their  real  ultimate  destination,  by  the  action  of  the  shippers, 
whenever  the  project  was  conceived,  or  however  it  was  to  be 
carried  out;  if,  in  truth,  it  is  reasonably  certain  that  the  ship- 
pers must  have  known  that  that  was  the  real  ultimate  destina- 
tion-of  the  goods  (apart  of  course  from  any  genuine  sale  to  be 
made  at  some  intermediate  place),  the  belligerent  had  a  right 
to  stop  the  goods  on  their  way,  and  to  seize  them  as  confiscable 
goods.  .  .  . 

For  the  many  reasons  which  I  have  given  in  the  course  of 
this  judgment  and  which  do  not  require  recapitulation,  or  even 
summary,  I  have  come  to  the  clear  conclusion  from  the  facts 
proved,  and  the  reasonable  and,  indeed,  irresistible  inferences 
from  them,  that  the  cargoes  claimed  by  the  shippers  as  belonging 
to  them  at  the  time  of  seizure  were  not  on  their  way  to  Denmark 
to  be  incorporated  into  the  common  stock  of  that  country  by 
consumption,  or  bona  fide  sale,  or  otherwise;  but,  on  the  con- 
trary, that  they  were  on  their  way  not  only  to  German  territory, 
but  also  to  the  German  Government  and  their  forces  for  naval 
and  military  use  as  their  real  ultimate  destination. 

To  hold  the  contrary  would  be  to  allow  one's  eyes  to  be  filled 
by  the  dust  of  theories  and  technicalities,  and  to  be  blinded  to 
the  realities  of  the  case. 


746  CONTINUOUS  VOYAGE  OR  ENEMY  DESTINATION. 
THE  BARON  STJERNBLAD. 

JUDICIAL  COMMITTEE  OF  THE  PRIVY  COUNCIL  OF  GREAT  BRITAIN.     1917. 
Law  Reports   [1918]  A.  C.  173. 

Appeal  from  a  judgment  of  the  President  [Sir  Samuel 
Evans]  of  the  Admiralty  Division  (in  Prize)  delivered  on  No- 
vember 27,  1916. 

The  Danish  steamship  Baron  Stjernblad  while  on  a  voyage 
from  Lisbon  to  Copenhagen  was  detained  at  North  Shields,  and 
on  April  18,  1916,  3000  bags  of  cocoa,  forming  part  of  her  cargo, 
were  there  seized.  The  goods  were  consigned  from  Lisbon  under 
bills  of  lading  making  them  deliverable  at  Gothenburg  to  the 
order  of  the  appellants,  a  Swedish  corporation  carrying  on  busi- 
ness at  Stockholm  as  manufacturers  of  cocoa  and  chocolate. 

On  May  26  the  appellants  applied  to  the  Procurator-General 
for  the  release  of  the  goods,  and  on  July  10  sent  to  him  an  affi- 
davit by  their  managing  director.  The  affidavit  stated  that  the 
goods  had  been  bought  and  paid  for  by  the  appellants  and  were 
at  all  times  intended  exclusively  for  consumption  in  the  appel- 
lants' factory  at  Stockholm.  .  .  . 

The  action  was  heard  by  the  President  on  November  27,  1916, 
when  the  appellants  claimed  the  release  of  the  goods  and  the 
costs,  damages  and  expenses  which  they  had  incurred  by  reason 
of  the  seizure  and  detention.  The  Attorney-General  at  the  con- 
clusion of  the  case  did  not  press  for  the  condemnation  of  the 
goods,  but  contended  that  there  were  circumstances  of  suspicion 
which  disentitled  the  appellants  from  recovering  costs,  damages 
or  expenses. 

The  learned  President  ordered  the  goods  to  be  released,  but 
rejected  the  claim  for  costs,  damages  and  expenses.  He  was  of 
opinion  that  there  was  reasonable  ground  for  the  seizure,  and 
that,  having  regard  to  various  facts  of  the  case,  the  Procurator- 
General  was  justified  in  proceeding  to  the  final  hearing.  .  .  . 

LORD  PARKER  OP  WADDINGTON.  On  April  18,  1916,  His  Maj- 
esty's officer  of  Customs  at  the  port  of  North  Shields  seized  as 
prize  3000  bags  of  cocoa  beans  on  board  the  Danish  steamship 
Baron  Stjernblad,  the  ground  of  seizure  being  that  the  goods 
were  contraband  of  war. 

It  is  not  disputed  that  cocoa  beans  are  contraband   but  by  the 


THE  BARON  STJERNBLAD.  747 

bills  of  lading  the  3000  bags  in  question  were  deliverable  to  the 
appellants  at  Gothenburg,  a  neutral  port,  and  the  only  question, 
therefore,  was  whether,  beyond  their  ostensible  destination  at 
Gothenburg,  they  had  a  further  or  ultimate  destination  in  an 
enemy  country.  The  President  decided  on  the  evidence  that 
they  had  not,  and  ordered  their  release  to  the  appellants,  but  he 
refused  to  allow  the  appellants  any  damages  or  costs,  and  the 
present  appeal  is  from  this  refusal. 

The  law  on  the  subject  is  reasonably  certain.  It  is  clearly 
stated  in  the  letter  of  Sir  William  Scott  and  Sir  John  Nicholl, 
printed  pp.  1-11  of  Pratt 's  edition  of  Mr.  Justice  Story's  Notes 
on  the  Principles  and  Practices  of  Prize  Courts,  and  in  the  case 
of  The  Ostsee  (1855),  3  Moore,  P.  C.  150.  If  there  were  no 
circumstance  of  suspicion,  or,  as  it  is  sometimes  put,  "no  prob- 
able cause"  justifying  the  seizure,  the  claimant  to  whom  the 
goods  are  released  is  entitled  to  both  costs  and  damages.  If,  on 
the  other  hand,  there  were  suspicious  circumstances  justifying 
the  seizure,  the  claimant  is  not  entitled  to  either  cost  or  dam- 
ages. The  reason  is  clear.  It  would  be  obviously  unjust  to 
compel  a  belligerent  to  pay  damages  or  costs  where  he  has  done 
nothing  in  excess  of  his  belligerent  rights,  and  those  rights 
justify  a  seizure  of  neutral  property  when  it  is  in  nature  con- 
traband and  there  is  reasonable  suspicion  that  it  has  an  enemy 
destination.  This  may  be  thought  hard  upon  the  neutral  owner, 
who  will  not  be  fully  indemnified  by  a  mere  release  of  his  prop- 
erty. So  it  is ;  but  war  unfortunately  entails  hardships  of  vari- 
ous kinds  on  neutrals  as  well  as  on  belligerents.  It  follows  that 
the  real  question  to  be  decided  on  this  appeal  is  whether,  when 
the  goods  were  seized,  there  were  circumstances  of  suspicion  jus- 
tifying the  seizure. 

Some  stress  was  laid  by  counsel  for  the  appellants  on  the  ex- 
amples given  by  Sir  William  Scott  and  Sir  John  Nicholl  in  the 
letter  above  referred  to  of  the  circumstances  under  which  seiz- 
ure would  be  justified.  All  of  them  no  doubt  relate  to  suspicion 
arising  either  on  the  ship's  papers  or  by  reason  of  something 
done  or  omitted  on  the  part  of  the  master  or  crew.  Their  Lord- 
ships do  not  think  that  the  writers  of  the  letter  intended  their 
list  of  examples  to  be  exhaustive,  and  it  must  be  remembered 
that  they  wrote  before  the  doctrine  of  continuous  voyage  had 
been  applied  either  to  contraband  or  to  blockade.  It  is  clear 
that  the  ultimate  as  opposed  to  the  ostensible  destination  of 
goods  would  seldom,  if  ever,  appear  on  the  ship's  papers  or  be 


748  CONTINUOUS  VOYAGE  OK  ENEMY  DESTINATION. 

within  the  knowledge  of  the  master  or  crew.  It  would  have  to 
be  proved  or  inferred  from  other  sources,  and  it  could  hardly 
be  contended  that  if  the  Crown  were  in  possession  of  evidence 
obtained  from  such  other  sources  from  which  an  ultimate  des- 
tination in  an  enemy  country  could  be  inferred  as  reasonably 
probable,  the  seizure  of  the  goods  would  not  be  justified. 

The  appellants  further  contended  that  in  considering  whether 
there  were  circumstances  of  suspicion  which  justified  the  seizure 
the  Court  must  confine  its  attention  to  those  circumstances  for 
which  the  owner  of  the  property  seized  is  in  some  way  responsi- 
ble, and  cannot  take  into  consideration  circumstances  the  exist- 
ence of  which  is  not  due  to  any  act  or  omission  on  the  part  of 
such  owner  or  his  agents  or  employees.  Before  considering  this 
contention  their  Lordships  think  it  better  to  state  shortly  the 
several  facts  on  which  the  Crown  relies  as  raising  a  reasonable 
suspicion  that  the  3000  bags  in  question  had  an  ultimate  des- 
tination in  Germany. 

Cocoa  and  chocolate  are  important  foodstuffs.  Both  are  man- 
ufactured from  cocoa  powder,  itself  the  product  of  the  cocoa 
bean.  In  manufacturing  cocoa  powder  cocoa  fat  is  also  pro- 
duced, and  from  cocoa  fat  glycerine  is  easily  made,  and  this  can 
be  readily  converted  into  nitro-glycerine,  an  essential  ingredient 
in  many  high  explosives.  Thus  100  tons  of  cocoa  beans  give 
about  60  tons  of  cocoa  powder  and  25  tons  of  cocoa  fat,  which 
last  will  yield  2^  tons  of  glycerine,  and  2y2  tons  of  glycerine 
can  be  converted  into  6  tons  of  nitro-glycerine. 

Prior  to  the  war  Germany  was  importing  annually  about 
55,000  tons  of  cocoa  beans;  this  was  approximately  one-quarter 
of  the  world's  annual  production.  The  outbreak  of  war  cut  her 
off  from  nearly  85  per  cent,  of  her  supply.  The  result  was  se- 
rious. In  spite  of  the  measures  taken  by  the  German  Govern- 
ment to  obtain  supplies  from  other  sources,  to  secure  economy 
and  td  regulate  distribution,  prices  rose  rapidly  until  by  March, 
1916,  the  price  of  cocoa  in  Berlin  was  eight  or  nine  times  its 
price  in  London.  Under  these  circumstances  there  was  every 
inducement  to  neutrals,  and  in  particular  to  the  neighbouring 
Scandinavian  countries,  to  develop  an  export  trade  in  cocoa 
beans  or  their  products  to  the  German  Empire. 

Turning  now  to  Sweden,  their  Lordships  find  that  prior  to  the 
war  the  imports  of  cocoa  beans  into  Sweden  were  between  1600 
and  1700  tons  annually.  There  was  no  re-export  trade  to  Ger- 
many. Since  the  outbreak  of  hostilities  imports  of  cocoa  beans 


THE  BARON  STJERNBLAD.  749 

into  Sweden  have  increased  tenfold,  and  a  re-export  trade  to 
Germany  has  been  developed.  During  the  first  year  of  the  war 
such  re-export  trade  amounted  to  over  1200  tons,  it  being  the 
regular  practice  to  ship  cocoa  beans  to  Gothenburg  in  Danish 
steamers  and  to  re-ship  them  thence  to  Germany.  Besides  this 
the  imports  of  cocoa  into  Sweden  have  since  the  outbreak  of  the 
war  largely  increased,  and  there  has  developed  a  considerable 
export  trade  from  Sweden  to  Germany  in  cocoa  powder,  cocoa, 
chocolate,  and  cocoa  fat,  an  export  trade  which  was  non-existent 
before  the  war.  The  fact  that  before  the  war  Sweden  imported 
cocoa  and  chocolate  from  Germany,  and  since  the  war  has  been 
unable  to  do  so,  has  little  bearing  on  the  inference  suggested 
by  the  circumstances  to  which  their  Lordships  have  referred. 

The  position  is  therefore  this.  If  the  shipments  of  cocoa 
beans  to  Sweden  be  considered  collectively,  a  considerable  por- 
tion thereof  must  be  destined  for  or  find  its  way  into  Germany, 
either  by  the  re-export  to  Germany  of  the  beans  themselves,  or 
by  the  export  to  Germany  of  the  various  products  of  the  beans. 
It  must  be  remembered  that  in  The  Balto,  [1917]  P.  79,  it  was 
decided  that  an  intention  to  export  to  an  enemy  country  the 
manufactured  products  of  imported  raw  material  might  bring 
a  case  within  the  doctrine  of  continuous  voyage.  The  decision 
is  not  binding  on  this  Board,  but  the  appellants'  counsel  did 
not  ask  their  Lordships  to  review  it  or  question  its  validity  in 
law.  The  appellants  thus  belong  to  a  class  of  importers,  some  of 
whom  must  be  engaged  in  a  contraband  trade,  while  others  may 
not.  It  is  impossible  in  any  particular  case  to  avoid  suspicion 
or  to  predicate  with  regard  to  any  particular  importer  that  his 
intention  is  innocent. 

But  the  matter  does  not  stop  there.  It  is  not  improbable  that 
in  the  case  of  a  reputable  Swedish  merchant  His  Majesty's 
Procurator-General  might  accept  his  assurance  or  guarantee 
that  neither  the  beans  in  question  nor  their  products  were  in- 
tended for  export  to  Germany,  but  would  be  consumed  in 
Sweden.  But  here,  unfortunately,  a  difficulty  is  raised  by  the 
Swedish  War  Trade  Law  of  April,  1916.  According  to  that 
law  it  is  unlawful  for  a  Swedish  subject  to  give  any  such  assur- 
ance or  guarantee  without  the  consent  of  the  Swedish  Executive, 
and  the  Executive  refuses  to  allow  Swedish  subjects  to  give  any 
such  assurance  or  guarantee  with  regard  to  the  products  of  im- 
ported raw  material.  This  law,  or  at  any  rate  the  way  in  which 
it  is  administered,  has  already  on  several  occasions  proved  prej- 


750  CONTINUOUS  VOYAGE  OR  ENEMY  DESTINATION. 

udicial  to  the  proper  determination  in  the  Prize  Court,  accord- 
ing to  international  law,  of  questions  arising  between  the  Crown 
and  Swedish  subjects.  Only  the  other  day  the  President  struck 
out  a  claim  on  the  ground  that  the  claimant,  a  Swedish  subject, 
refused,  under  order  of  his  Government,  to  give  the  discovery 
which  had  been  ordered  by  the  Prize  Court,  and  their  Lord- 
ships felt  unable  to  advise  His  Majesty  to  give  leave  to  appeal 
from  the  President's  decision.  It  is  quite  impossible  for  a  Prize 
Court  administering  international  law  to  accept  the  dictates  of 
any  municipal  law  as  to  what  discovery  ought  or  ought  not  to 
be  insisted  on  either  generally  or  in  any  particular  case.  The 
Prize  Court  can,  however,  protect  itself,  but  this  is  not  so  with 
the  Swedish  subject.  He  is  in  a  dilemma.  Either  he  must  act 
in  contempt  of  the  order  of  the  Prize  Court  and  so  lose  his  case, 
which  may  be  a  perfectly  good  one,  or  he  must  prove  his  case 
to  the  Prize  Court,  and  in  so  doing  incur  penalties  under  his 
own  municipal  law.  The  position  is  anomalous,  but  the  anomaly 
is  certainly  not  due  to  any  defect  in  the  practice  of  the  Prize 
Court  or  in  the  law  which  it  administers.  « 

It  appears  that  the  assurance  or  guarantee  given  by  the  ap- 
pellants prior  to  the  seizure  of  the  goods  in  question  went  only 
to  the  consumption  in  Sweden  of  the  raw  material,  and  said 
nothing  about  its  products.  It  was  only  in  the  course  of  the 
subsequent  proceedings  before  the  Prize  Court,  when  one  of  the 
directors  of  the  appellant  firm  was  examined  orally,  that  evi- 
dence was  adduced  on  this  point,  and  this  evidence,  though  ac- 
cepted by  the  President  as  satisfactory,  was  not,  in  their  Lord- 
ships' opinion,  so  conclusive  as  to  make  it  unreasonable  for  the 
Crown  to  bring  the  case  to  trial.  For  example,  it  does  not  ap- 
pear how  the  appellants  dispose  of  the  cocoa  fat  produced  in 
the  manufacture  of  cocoa  or  chocolate  from  the  cocoa  beans. 

Their  Lordships  therefore  conclude  that,  looking  at  all  the 
known  facts  from  the  common-sense  point  of  view,  there  were 
circumstances  of  suspicion  calling  for  further  inquiry,  and 
amply  sufficient  to  justify  the  seizure,  so  that  the  only  remain- 
ing question  on  this  part  of  the  case  is  whether  the  appellants 
are  right  in  their  contention  that  these  facts,  or  some  of  them, 
ought  to  have  been  disregarded  altogether,  because  their  exist- 
ence was  not  due  to  any  action  or  omission  for  which  the  ap- 
pellants could  be  held  responsible. 

Their  Lordships  are  of  opinion  that  this  contention  is  wholly 
untenable.  The  question  in  every  case  is  whether  circumstances 


THE  BONNA.  751 

of  suspicion  exist,  and  not  who  is  responsible  for  their  existence. 
Thus  the  fact  that  documents  are  destroyed  when  search  is  im- 
minent is  a  suspicious  circumstance  irrespective  of  the  person 
responsible  for  the  destruction,  and  whether  this  person  acted 
on  the  instructions,  or  in  the  presumed  interest,  of  the  cargo 
owners  or  otherwise.  Indeed,  in  the  present  case  the  question 
how  far  the  appellants  were  responsible  for  the  growth  of  the 
export  trade  from  Sweden  to  Germany  in  cocoa  beans  or  their 
products  was  precisely  one  of  the  questions  requiring  investiga- 
tion, and  would  be  of  the  utmost  materiality  in  determining  the 
ultimate  destination  of  the  goods  in  question.  If  responsibility 
has  anything  to  do  with  it,  it  would  seem  that  the  appellants 
were  responsible  for  the  absence  of  any  assurance  or  guarantee 
as  to  the  products  of  the  goods,-  although  their  omission  in  this 
respect  was  due  to  observance  of  their  own  municipal  law;  and 
further,  a  neutral  cargo  owner  would  appear  to  be  quite  as 
responsible  for  the  actions  of  his  own  Government  as  he  is  for 
the  action  of  the  master  or  crew  of  the  vessel  on  which  the  cargo 
is  shipped.  .  .  . 

Their  Lordships  will  humbly  advise  His  Majesty  that  the  ap- 
peal should  be  dismissed  with  costs. 


THE  BONNA. 

ADMIBAXTY  DIVISION    (IN  PRIZE)    OF  THE  HIGH  COURT  OF  JUSTICE  OF 

ENGLAND.     1918. 
Law  Reports   [1918]   P.  123. 

In  this  case,  which  governed  a  number  of  others,  the  Procura- 
tor-General, on  behalf  of  the  Crown,  claimed  the  condemnation 
of  416  tons  of  cocoanut  oil  seized  at  Bristol  on  August  27,  1916, 
ex  the  Norwegian  steamship  Bonna. 

»  The  claimants,  the  Nya  Margarin  AB.  Svea,  of  Kalmar, 
Sweden,  claimed  the  release  of  the  oil  on  the  ground  that  it  had 
been  bought  by  them  for  the  purpose  of  the  manufacture,  in 
their  own  factory,  of  margarine  for  sale  and  consumption  in 
Sweden. 

The  case  is  reported  on  the  alternative  question  argued  on 
behalf  of  the  Crown  that,  assuming  the  claimants  established 
that  the  oil  was  destined  solely  for  the  Swedish  factory,  it 


752  CONTINUOUS  VOYAGE  OR  ENEMY  DESTINATION. 

should  be  deemed  to  have  an  enemy  destination  on  the  ground 
that  it  helped  to  form  part  of  a  reservoir  of  edible  fats  part  of 
which  went  to  Germany,  or  that  the  margarine  manufactured 
from  it  would,  to  the  knowledge  of  the  claimants,  be  consumed 
in  Sweden  in  substitution  for  butter  exported  to  Germany.  On 
this  latter  point  it  appeared  from  an  affidavit  by  the  Controller 
of  the  War  Trade  Statistical  Department  that  before  the  war 
Sweden  exported  about  76  per  cent,  of  her  surplus  butter  to 
the  United  Kingdom  and  Denmark,  and  that  th.e  quantity  ex- 
ported to  Germany  was  2.3  per  cent.  After  the  outbreak  of  war 
the  export  to  the  United  Kingdom,  and  in  a  lesser  degree  to 
Denmark,  decreased,  until  by  June,  1916,  it  had  dwindled  to 
less  than  0.4  per  cent.,  while  Germany  was  receiving  98  per  cent. 
of  the  total  export.  During  the  second  half  of  1916  large 
quantities  of  edible  fats  and  oils  suitable  for  margarine  man- 
ufacture were  seized  as  prize,  with  the  result  that,  whereas  in 
July,  1916,  1716  tons  of  butter  were  exported,  1701  of  which 
went  to  Germany,  in  December,  1916,  less  than  one  ton  was  ex- 
ported, and  from  January  to  October,  1917,  only  one  and  a  half 
tons  were  exported  to  Germany.  .  .  . 

THE  PRESIDENT  (Sra  SAMUEL  EVANS).  .  .  .  Apart  from 
these  questions  of  fact,  counsel  for  the  Crown  rested  their  case 
upon  a  broader  ground.  Statistics  were  given  in  evidence  to 
show  the  increase  of  the  importation  into  Sweden  of  raw  mate- 
rials for  margarine  and  of  the  production  and  sale  of  marga- 
rine, and  to  show  the  simultaneous  increase  of  the  export  of 
butter  from  Sweden  to  Germany.  They  were  interesting,  and 
beyond  doubt  they  proved  that  the  more  margarine  was  made 
for  the  Swedes  the  more  butter  was  supplied  by  them  to  the 
Germans;  and  that  when  by  reason  of  the  naval  activity  of  this 
country  the  imports  of  margarine  production  became  dimin- 
ished, the  Swedish  butter  was  kept  for  consumption  within 
Sweden  itself  and  ceased  to  be  sent  to  the  enemy. 

Upon  these  facts  counsel  for  the  Crown  formulated  and 
founded  their  logical  proposition.  That  proposition  may  be 
translated  in  practical  terms,  in  relation  to  the  facts  of  this 
case,  perhaps  more  usefully  than  if  it  were  stated  in  abstract 
language.  So  translated  it  may  be  stated  thus:  "Margarine 
and  butter  are  of  the  same  class  of  food,  one  being  used  as  a 
substitute  for,  or  even  as  an  equivalent  of,  the  other.  Marga- 
rine was  produced  in  Sweden — by  the  claimants  among  others — 


THE  BONNA.  753 

with  the  result  that,  to  the  knowledge  of  the  manufacturers, 
the  butter  of  the  country  was  being  sent  to  Germany,  where  it 
would  pass  under  the  control  of  the  Government.  There  was, 
so  to  speak,  one  reservoir  of  the  edible  fats,  butter  and  mar- 
garine. As  one  part  of  the  contents — the  butter — was  conveyed 
away  for  consumption  in  Germany,  the  other  part — margarine 
— was  sent  in  to  take  its  place  for  consumption  in  Sweden.  If 
the  one  part  could  be  captured  as  conditional  contraband,  the 
other  was  subject  to  capture  also ;  and  not  only  that  part  when 
completely  manufactured,  but  the  raw  materials  for  it  as  well. ' ' 

No  authority  was,  or  could  be,  adduced  for  the  proposition 
formulated  in  such  an  argument;  but  it  was  contended,  never- 
theless, that  it  logically  followed  principles  recognized  by  in- 
ternational law. 

Before  pronouncing  the  decision  of  the  Court  I  think  it  right 
to  say  that,  if  it  were  established  that  raw  materials  were  im- 
ported by  a  neutral  for  the  manufacture  of  margarine  with  an 
intention  to  supply  the  enemy  with  the  maufactured  article,  I 
should  be  prepared  to  hold  that  the  doctrine  of  continuous  voy- 
age applied  so  as  to  make  such  raw  materials  subject  to  con- 
demnation as  conditional  contraband  with  an  enemy  destination. 

I  should  go  even  further  and  hold  that,  if  it  were  shown  that 
in  a  neutral  country  particular  manufacturers  of  margarine 
were  acting  in  combination  with  particular  producers  or  vendors 
of  butter,  and  that  the  intention  and  object  of  their  combination 
was  to  produce  the  margarine  in  order  to  send  the  butter  to  the 
enemy,  the  same  doctrine  would  be  applicable  with  the  same 
results. 

But  there  is  a  long  space  between  those  two  supposed  cases 
and  the  one  now  before  the  Court;  and  this  space,  in  my  view, 
cannot  be  spanned  by  the  application  of  the  accepted  principles 
of  the  law  of  nations. 

I  do  not  consider  that  it  would  be  in  accordance  with  inter- 
national law  to  hold  that  raw  materials  on  their  way  to  citizens 
of  a  neutral  country  to  be  converted  into  a  manufactured  article 
for  consumption  in  that  country  were  subject  to  condemnation 
on  the  ground  that  the  consequence  might,  or  even  would,  neces- 
sarily be  that  another  article  of  a  like  kind,  and  adapted  for  a 
like  use,  would  be  exported  by  other  citizens  of  the  neutral 
country  to  the  enemy. 

I  therefore  allow  the  claim,  and  order  that  the  goods  seized, 
or  the  proceeds  if  sold,  be  released  to  the  claimants. 


754  CONTINUOUS  VOYAGE  OR  ENEMY  DESTINATION. 
THE  LOUISIANA  AND  OTHER  SHIPS. 

JUDICIAL  COMMITTEE  OF  THE  PRIVY  COUNCIL,  OF  GREAT  BRITAIN.     1918. 
Law  Reports  [1918]  A.  C.  461. 

Appeals  from  decrees  of  the  President  of  the  Probate,  Di- 
vorce and  Admiralty  Division  (in  Prize).  .  .  . 

The  appeals,  which  were  heard  together,  were  by  two  Amer- 
ican companies  and  an  American  citizen  against'  decrees  con- 
demning conditional  contraband  goods,  namely  fodder  stuffs, 
shipped  by  them  in  the  neutral  steamships  Louisiana,  Tomsk, 
Nordic,  and  Joseph  W.  Fordney.  The  goods  were  shipped  from 
the  United  States  in  March,  1915,  under  bills  of  lading  which 
made  them  deliverable  in  each  case  at  a  Swedish  port  to,  in  the 
case  of  the  Nordic,  W.  Fritsch,  and  in  the  other  cases  E.  Klinge- 
ner.  Fritsch  and  Klingener  were  Swedish  subjects  and  traders. 
In  each  case  the  bills  of  lading  were  forwarded  by  the  appellant 
or  appellants  to  the  Danish  firm  of  Christensen  &  Schrei,  who 
carried  on  business  at  Copenhagen.  The  ships  were  diverted 
to  a  British  port  and  the  goods  were  there  seized  in  April  and 
May,  1915.  The  appellants  claimed  the  goods  alleging  that  they 
were  their  property  respectively,  and  were  not  intended  for 
disposal  to  any  belligerent  State.  In  the  first  three  appeals  the 
claimants  alleged  that  Christensen  &  Schrei  were  their  agents 
for  sale;  in  the  last  appeal  it  was  alleged  that  that  firm  had 
ordered  the  goods  for  Klingener. 

The  President  (Sir  Samuel  Evans)  on  June  9,  1916,  con- 
demned the  goods.  He  found  in  the  case  of  each  shipment  that 
the  goods  were  intended  for,  and  had  been  acquired  for,  the 
German  Government;  and  that  Klingener,  Fritsch,  and  Chris- 
tensen &  Schrei  were  merely  intermediary  tools. 

LORD  PARKER  OF  WADDINGTON.  These  four  appeals  relate  to 
certain  fodder  stuffs  (being  part  of  the  cargoes  of  the  steam- 
ships Louisiana,  Tomsk,  and  Nordic,  and  the  whole  cargo  of  the 
steamship  Joseph  W.  Fordney)  which  were  seized  on  behalf  of 
His  Majesty  in  April  and  May,  1915,  and  have  been  condemned 
by  the  President  as  lawful  prize.  Each  appeal  is  against  the 
order  of  condemnation. 

Fodder  stuffs  are  not  absolute  contraband.  They  are  condi- 
tional contraband  only,  that  is  to  say,  they  cannot  be  condemned 
as  lawful  prize  unless  destined  for  the  enemy  Government  or  the 


THE  LOUISIANA.  755 

enemy's  naval  or  military  forces.  On  the  other  hand,  in  deter- 
mining this  destination,  the  doctrine  of  continuous  voyage  is 
clearly  applicable,  and  must  be  applied  in  every  case  in  which 
the  Crown  has  not  waived  its  strict  rights.  The  first  question, 
therefore,  in  each  appeal  is  whether  the  goods  to  which  the  ap- 
peal relates  were  destined  for  the  enemy  Government  or  the 
enemy's  naval  or  military  forces.  The  second  question  is 
whether,  if  so  destined,  the  Crown  has  not,  as  contended  by  the 
appellants,  waived  its  right  to  condemnation  by  the  Order  in 
Council  of  October  29,  1914,  adopting  during  the  present  hos- 
tilities the  provisions  of  the  Declaration  of  London  with  certain 
additions  and .  modifications,  this  Order,  though  since  repealed, 
having  been  in  force  when  the  goods  were  seized. 

In  considering  cases  such  as  those  with  which  their  Lordships 
have  now  to  deal,  it  is  well  to  bear  in  mind  that,  according  to 
international  law,  neutrals  may  during  a  war  trade  freely  as 
well  with  the  belligerents  as  with  other  neutrals.  If,  however, 
the  goods  in  which  they  trade  are  in  their  nature  contraband, 
the  traffic  involves  certain  risks.  For  a  belligerent  State  is  en- 
titled to  seize  the  goods  in  transit  on  reasonable  suspicion  that, 
being  in  their  nature  absolute  contraband,  they  are  destined  for 
the  enemy  country,  or,  being  in  their  nature  conditional  con- 
traband, they  are  destined  for  the  enemy  Government  or  the 
enemy  naval  or  military  forces.  The  goods  when  seized  must 
of  course  be  brought  into  the  Prize  Court  for  adjudication,  but 
in  the  Prize  Court  the  neutral  trader  is  not  in  the  position  of 
a  person  charged  with  a  criminal  offence  and  presumed  to  be 
innocent  unless  his  guilt  is  established  beyond  reasonable  doubt. 
He  comes  before  the  Prize  Court  to  show  that  there  was  no  rea- 
sonable suspicion  justifying  the  seizure  or  to  displace  such 
reasonable  suspicion  as  in  fact  exists.  The  State  of  the  captors 
is  necessarily  unable  to  investigate  the  relations  between  the 
neutral  trader  and  his  correspondents  in  enemy  or  neutral 
countries,  but  the  neutral  trader  is  or  ought  to  be  in  a  position 
to  explain  doubtful  points.  If  his  goods  had  no  such  destination 
as  would  subject  them  to  condemnation  by  the  Prize  Court,  it 
is  his  interest  to  make  full  disclosure  of  all  the  details  of  the 
transaction.  Only  if  his  goods  had  such  destination  can  it  be 
his  interest  to  conceal  anything  or  leave  anything  unexplained. 
If  he  does  not  conceal  matters  which  it  is  material  for  the  Court 
to  know,  or  if  he  neglects  to  explain  matters  which  he  is  or 
ought  to  be  in  a  position  to  explain,  or  if  he  puts  forward  un- 


756  CONTINUOUS  VOYAGE  OR  ENEMY  DESTINATION. 

satisfactory  or  contradictory  evidence  in  matters  the  details  of 
which  must  be  within  his  knowledge,  he  cannot  complain  if  the 
Court  draws  inferences  adverse  to  his  claim  and  condemns  the 
goods  in  question. 

In  each  of  these  appeals  their  Lordships  find  that  the  evidence 
discloses  no  such  simple  story  supported  by  documents  as  one 
would  expect  in  the  case  of  straightforward  transactions  be- 
tween neutrals  in  America  and  neutrals  in  Sweden  or  Denmark. 
The  position  of  almost  every  person  concerned  is  obscured  in  a 
cloud  of  mystery.  The  evidence  is  in  some  points  insufficient 
and  in  others  conflicting  or  misleading,  and  the  several  claim- 
ants have  thought  fit  to  leave  entirely  unexplained  a  number  of 
circumstances  which  urgently  call  for  explanation. 

The  cases  of  the  part  cargo  ex  steamship  Louisiana  and  the 
part  cargo  ex  steamship  Tomsk  may  be  taken  together,  and  their 
Lordships  note  the  following  points: — 

1.  The  position  of  Klingener  in  the  case  of  the  shipment  per 
steamship  Louisiana  and  of  Fritsch  in  the  case  of  the  shipment 
per  steamship  Tomsk,  is  by  no  means  clear.     According  to  the 
appellants'  manager,  Mr.  Harry  B.  Smith,  these  gentlemen  were 
named  as  consignees  in  the  bills  of  lading  on  the  initiative  of 
the  appellants  themselves,  because  it  was  thought  that  insurance 
companies  required  that  there  should  be  a  named  consignee  res- 
ident in  the  country  of  the  port  of  ultimate  discharge.    The  ap- 
pellants certainly  gave  Christensen  &  Schrei  a  guarantee  that 
Klingener  and  Fritsch  would  indorse  and  deal  with  the  bills  as 
required  by  them.     On  the  other  hand,  Klingener  and  Fritsch 
say  that  it  was  Christensen  &  Schrei  who  asked  them  to  accept 
the  respective  consignments;  but  Christensen  &  Schrei  do  not 
confirm  this  story.    There  is  no  evidence  that  the  appellants  had 
any  prior  transactions  with  either  Klingener  or  Fritsch,  or  how 
the  appellants  came  to  know  of  the  existence  of  either  of  them. 
It  is,  however,  quite  certain  that  neither  Klingener  nor  Fritsch 
had  any  real  interest  in  the  transaction  nor  any  duty  beyond 
indorsing  and  dealing  with  the  bills  as  directed  either  by  Chris- 
tensen &  Schrei  or  the  appellants,  or  possibly  some  one  behind 
the  appellants. 

2.  It  appears  that  Christensen  &  Schrei  originally  claimed  to 
be  owners  of  the  goods.    In  the  case  of  the  shipment  per  steam- 
ship Louisiana,  this  claim  was  first  put  forward  on  their  behalf 
by  the  Danish  Minister  on  April  25,  1915,  in  a  letter  to  Sir 
Edward  Grey.    In  their  declaration  made  on  July  15,  1915,  to 


THE  LOUISIANA.  757 

the  Danish  Ministry  of  Commerce  they  refer  to  the  goods  as 
having  been  "purchased  and  consigned  to"  them.  The  meaning 
of  this  is  obscure.  It  looks  at  first  sight  as  if  they  meant  to  sug- 
gest, though  without  saying  this  in  so  many  words,  that  they 
had  purchased  the  goods;  but  this  is  inconsistent  with  the  cor- 
respondence annexed  to  the  declaration.  To  what  purchase  they 
refer  remains  a  mystery.  In  their  subsequent  affidavit  they  in 
effect  say  there  was  no  purchase,  the  goods  having  remained 
throughout  the  property  of  the  appellants.  Their  own  claim  to 
ownership  was  thus  abandoned. 

3.  The  case  ultimately  put  forward  was  that  Christensen  & 
Schrei  were  the  appellants'  agents  for  the  sale  of  the  goods  in 
question  on  the  Scandinavian  markets,  but  there  appears  to  have 
been  no  formal  contract  of  agency,  nor  any  arrangement  as  to 
how  the  agents  were  to  be  remunerated.     Indeed,  the  transac- 
tions in  question  were  the  first  transactions  between  the  appel- 
lants and  Christensen  &  Schrei,  whose  address  had  been  ob- 
tained by  the  appellants  from  a  firm  in  New  York  whose  name 
is  not  disclosed.     Assuming  that   Christensen   &   Schrei   were 
agents  for  sale,  their  authority  to  sell  would  appear  to  be  in  the 
nature  of  a  simple  mandate  revocable  at  will  by  the    appellants. 
In  case  of  such  a  revocation,  Christensen  &  Schrei  would  be 
bound  to  deal  with  the  bills  of  lading,  or  the  goods  represented 
by  these  bills,  in  manner  directed  by  the  person  entitled  to  re- 
voke the  authority. 

4.  Though  the  appellants  are  claiming  as  owners,  it  is  re- 
markable that  Mr.  Harry  B.  Smith  does  not  anywhere  in  his 
affidavit  commit  himself  to  the  statement  that  his  company  ever 
at  any  material  time  owned  the  goods.    The  bills  of  lading,  after 
indorsement  by  Klingener  and  Fritsch,  appear  to  have  been  sent 
to  him  by  Christensen  &  Schrei,  and  he  says  that  his  company 
is  the  holder  or  owner  of  the  bills  of  lading  and  entitled  to  the 
immediate  possession  of  the  goods.    But  the  "ownership"  of  a 
bill  of  lading,  in  the  sense  of  holding  it  with  a  right  to  posses- 
sion, which  is  what  the  affidavit  seems  to  mean,  does  not  always 
connote  ownership  of  the  goods  comprised  in  the  bill,  and  his 
affidavit  is  quite  consistent  with  the  ownership  being  in  a  third 
party  on  whose  directions  the  appellants  had  acted  throughout. 
It  is  also  to  be  observed  that  Mr.  Harry  B.  Smith  does  not  state 
who  forwarded  the  bills  to  Christensen  &  Schrei.     He  merely 
states  that  they  were  duly  forwarded.     It  is  left  to  Christensen 
&  Schrei  to  depose  to  the  appellants'  ownership  of  the  goods,  as 


758  CONTINUOUS  VOYAGE  OR  ENEMY  DESTINATION. 

to  which  they  would  not  necessarily  know  anything,  and  as  to 
the  appellants  having  forwarded  the  bills  to  them.  In  the  case 
of  the  shipment  per  steamship  Louisiana  they  produced  a  letter 
from  the  appellants  enclosing  the  bills,  but  they  produced  no 
letter  covering  the  bills  in  the  case  of  the  shipment  per  steam- 
ship Tomsk.  In  the  latter  case  there  is  reason  to  suppose  that 
the  bills  were  so  forwarded  by  the  firm  of  K.  &  E.  Neumond, 
of  New  York,  who  are  admitted  to  have  made  some  of  the  ar- 
rangements in  connection  with  the  shipment,  though  it  does  not 
appear  in  what  capacity.  This  firm  obtained  the  bills  of  lading 
per  steamship  Tomsk,  from  the  agents  for  the  ship,  and,  in  con- 
sideration of  the  bills  omitting  reference  to  the  fact  that  some 
of  the  bags  had  been  torn  and  mended,  gave  the  guarantee 
printed  in  the  record.  The  connection  of  K.  &  E.  Neumond 
with  the  transaction  is  wholly  unexplained.  Christensen  & 
Schrei  claim  to  have  been  their  selling  agents  in  Europe.  This 
seems  to  suggest  that  K.  &  E.  Neumond,  and  not  the  appellants, 
were  in  real  control  of  the  business  in  America.  If,  as  original- 
ly declared  by  Christensen  &  Schrei,  the  goods  had  been  pur- 
chased at  all,  that  firm  may  well  have  been  the  purchasers, 
either  on  their  own  account  or  as  agents  for  some  one  else. 

5.  That  there  was  some  one  behind  the  appellants  is  rendered 
certain  by  the  two  wireless  messages  of  April  1  and  9, 1915,  from 
the  Guaranty  Trust  Company,  of  New  York,  to  the  Disconto- 
Gesellschaft,  Berlin.    In  the  first  the  Guaranty  Trust  Company 
tell  their  Berlin  correspondent  that  the  shipment  per  steamship 
Louisiana  is  being  forwarded  by  them  on  account  of  "Albert." 
In  the  second  the  Guaranty  Trust  Company  tell  their  Berlin 
correspondent  that  the  shipment  per  Tomsk  is  being  forwarded 
by  them  on  account  of  "Albert"  to  Christensen  &  Schrei. 

6.  Mr.  Greenwood,  in  his  affidavit  on  behalf  of  the  Crown, 
states  certain  facts  which  inevitably  lead  to  the  inference  that 
the  "Albert"  mentioned  in  these  messages  was  Heinrich  Albert, 
a  well-known  agent  of  the  German  Government  in  the  United 
States,  who  appears  to  have  been  acting  through  K.  &  E.  Neu- 
mond, to  whom  he  had  been  recommended  by  Christensen  & 
Schrei,  and  to  have  been  financed  by  the  Disconto-Gesellschaft, 
of  Berlin,  through  the  Guaranty  Trust  Company,  of  New  York. 
The  appellants,  who  must  be  fully  aware  of  the  connection  of 
Heinrich  Albert,  K.  &  E.  Neumond,  the  Disconto-Gesellschaft, 
and  the  Guaranty  Trust  Company  with  the  transaction  in  ques- 


THE  LOUISIANA.  759 

tion,  have  chosen  to  leave  this  connection  entirely  unexplained 
and  Mr.  Greenwood's  affidavit  entirely  unanswered. 

Under  the  circumstances  above  mentioned,  the  only  possible 
conclusion  is  that  the  shipments  per  Louisiana  and  Tomsk  were 
made  by  or  on  behalf  of  the  German  Government  through  its 
agents  in  America,  and  that  the  details  of  the  transactions  were 
so  arranged  as  to  conceal  the  fact. 

In  considering,  on  the  principle  of  continuous  voyage,  what 
is  the  ultimate  destination  of  goods  which  are  in  their  nature 
conditional  contraband,  it  is  the  intention  of  the  person  who  is 
in  a  position  to  control  the  destination  which  is  really  material. 
Had  Klingener  and  Fritsch  had  any  real  interest,  it  might  have 
been  their  intention  which  mattered.  Had  Christensen  &  Schrei 
purchased  the  goods,  or  even  had  they  obtained  possession  of 
the  bills  of  lading  under  circumstances  which  entitled  them  to 
dispose  of  the  goods,  notwithstanding  orders  to  the  contrary 
from  the  appellants,  or  some  one  for  whom  the  appellants  were 
acting,  the  intention  of  Christensen  &  Schrei  would  have  been 
a  material  point.  Had  the  appellants  been  dealing  with  their 
own  goods  on  their  own  behalf,  their  intention  might  have  been 
the  determining  factor.  But  if,  as  their  Lordships  find,  the  ap- 
pellants were  acting  by  the  direction  of  an  agent  of  the  German 
Government,  it  is  the  intention  of  the  German  Government 
which  must  be  looked  for.  It  would  be  ridiculous  to  suppose 
that  the  German  Government  were  speculating  in  fodder  stuffs 
for  the  Scandinavian  markets.  These  stuffs  were  urgently 
needed  in  Germany  for  the  purposes  of  the  war,  and  the  only 
possible  inference  is  that  the  goods  in  question  were  intended 
to  reach  Germany  and  be  utilized  for  war  purposes.  It  is  true, 
no  doubt,  that  the  municipal  laws  of  both  Denmark  and  Sweden 
prohibit  the  export  of  fodder  stuffs,  but  it  is  not  clear  that  this 
prohibition  includes  transhipment  at  Danish  or  Swedish  ports, 
or  that  licences  for  export  are  not  readily  granted  by  the  Danish 
or  Swedish  authorities,  at  any  rate  if  the  stuffs  in  question  are 
not  really  needed  for  home  consumption.  The  experience  of  the 
Prize  Court  during  the  war  has  made  it  clear  that  the  laws 
referred  to,  however  stringent,  can  be  evaded. 

Their  Lordships  come  to  the  conclusion  that  the  President 
was  fully  justified  in  finding  that  the  shipments  per  steamship 
Louisiana  and  Tomsk  were  destined  for  the  German  Govern- 
ment. 

[Their  Lordships'  judgment  then  dealt  with  the  evidence  as 


760  CONTINUOUS  VOYAGE  OE  ENEMY  DESTINATION. 

to  the  shipments  in  the  Nordic  and  Joseph  W.  Fordney,  as  to 
which  they  also  came  to  the  conclusion  that  "the  President  was 
right  in  finding  that  the  goods  were  destined  for  the  enemy  Gov- 
ernment"; the  judgment  continued  as  follows:] 

The  remaining  point  to  be  considered  is  whether  the  Crown 
has  or  has  not  by  the  Order  in  Council  of  October  29,  1914, 
waived  its  right  to  the  condemnation  of  the  goods  the  subject 
of  these  appeals. 

The  Declaration  of  London  was  a  provisional  agreement  em- 
bodying certain  somewhat  sweeping  changes  in  international 
law.  Its  35th  article  in  effect  entirely  abrogates  the  doctrine 
of  continuous  voyage  in  the  case  of  conditional  contraband. 
Parliament  refused  to  consent  to  its  ratification,  and  it  never 
became  binding  on  this  country.  It  was,  however,  by  Order  in 
Council  dated  August  20,  1914,  adopted  by  His  Majesty  for  the 
period  of  the  present  war  with  certain  additions  and  modifica- 
tions. By  one  of  these  modifications  it  was  provided  that,  not- 
withstanding art.  35,  conditional  contraband,  if  shown  to  be 
destined  for  the  armed  forces  or  a  Government  department  of 
the  enemy  State,  should  be  liable  to  capture  to  whatever  port 
the  vessel  was  bound  or  at  whatever  port  the  cargo  was  to  be 
discharged.  This  modification,  in  effect,  neutralized  art.  35,  and 
the  doctrine  of  continuous  voyage  remained  as  applicable  to 
conditional  contraband  as  it  had  been  before  the  Order. 

The  application  of  the  doctrine  of  continuous  voyage  to  con 
ditional  contraband  appears  to  have  given  rise  during  the  ear- 
lier months  of  the  war  to  certain  diplomatic  representations  on 
the  part  of  the  United  States.  These  representations  are  said  to 
have  led  to  the  repeal  of  the  Order  of  August  20, 1914,  and  to  the 
substitution  therefor  of  the  Order  in  Council  of  October  29, 
1914.  By  this  last-mentioned  Order  the  Declaration  of  London 
was  again  adopted  by  His  Majesty  for  the  period  of  the  present 
war  with  certain  additions  and  modifications.  The  material 
modification,  however,  now  provided  that  notwithstanding  art. 
35  of  the  Declaration,  conditional  contraband  should  be  liable 
to  capture  on  board  a  vessel  bound  for  a  neutral  port  (1..)  if 
the  goods  are  consigned  "to  order,"  or  (2.)  if  the  ship's  papers 
do  not  show  who  is  "the  consignee  of  the  goods,"  or  (3.)  if 
they  show  "a  consignee  of  the  goods"  in  territory  belonging  to 
or  occupied  by  the  enemy.  The  effect  of  the  Order  is  therefore 
to  waive  the  doctrine  of  continuous  voyage  except  in  those  cases 
expressly  referred  to  in  the  modification.  The  appellants  con- 


THE  LOUISIANA.  761 

tend  that  none  of  the  goods  in  question  in  these  appeals  can  be 
brought  within  any  of  the  cases  referred  to.  None  of  the  goods 
were  consigned  "to  order."  The  bill  of  lading,  which  formed 
one  of  the  ship's  papers,  showed  in  every  instance  who  was  the 
consignee  of  the  goods,  and  neither  the  bill  of  lading  nor  any 
other  of  the  ship's  papers  showed  in  any  instance  a  consignee 
of  the  goods  in  territory  belonging  to  or  occupied  by  the  enemy. 
Their  Lordships  are  of  opinion  that  this  contention  cannot  be 
sustained.  It  assumes  that  the  words  "if  the  ship's  papers  do 
not  show  the  consignee  of  the  goods ' '  mean  ' '  if  the  ship 's  papers 
do  not  show  a  consignee  of  the  goods. ' '  But  on  this  interpreta- 
tion there  is  no  difference  between  the  first  case  and  the  second, 
for  a  bill  of  lading  which  does  not  show  a  consignee  is  in  effect 
for  present  purposes  a  bill  to  order.  Further,  the  reason  for 
not  waiving  the  doctrine  of  continuous  voyage  in  the  case  of 
consignments  to  order  can  only  have  been  that  in  the  case  of 
such  consignments  the  shipper  retains  the  control  of  the  goods, 
and  can  alter  their  destination  as  his  interests  may  dictate  or 
circumstances  may  admit.  This  control  may,  however,  be  re- 
tained by  the  shipper,  even  if  he  consigns  to  a  named  person, 
provided  that  the  consignee  be  bound  to  indorse  or  otherwise 
deal  with  the  bill  of  lading  as  directed  by  the  shipper.  It  would 
be  useless  to  retain  the  doctrine  of  continuous  voyage  in  the  case 
of  consignments  to  order,  if  the  shipper  could  escape  the  doc- 
trine by  consigning  to  a  clerk  in  his  office  and  procuring  the 
clerk  to  indorse  the  bill.  He  would  in  this  manner  retain  as  full 
control  of  the  goods  as  if  the  consignment  had  been  to  order. 
It  is  impossible,  in  their  Lordships'  opinion,  to  construe  the 
Order  as  an  intimation  to  neutrals  that,  provided  they  make 
their  consignment  to  named  persons  not  residing  in  territory 
belonging  to  or  occupied  by  the  enemy,  they  may,  in  the  case 
of  conditional  contraband,  safely  disregard  the  doctrine  of  con- 
tinuous voyage.  If  the  Order  were  so  construed,  the  modifica- 
tion of  art.  35  would  be  absolutely  useless,  and  conditional  con- 
traband could  be  supplied  to  the  enemy  Government  through 
neutral  ports  as  freely  as  if  art.  35  had  been  adopted  without 
any  modification  at  all.  In  their  Lordships'  opinion  the  words 
"the  consignee  of  the  goods"  must  mean  some  person  other  than 
the  consignor  to  whom  the  consignor  parts  with  the  real  control 
of  the  goods.  It  is  said  that  such  a  construction  would  defeat 
the  object  in  view,  which  must  have  been  to  make  some  conces- 
sion for  the  benefit  of  neutral  traders.  But  even  if  construed 


762  CONTINUOUS  VOYAGE  OR  ENEMY  DESTINATION. 

as  in  their  Lordships'  opinion  it  ought  to  be  construed,  the  ef- 
fect of  the  Order  is  to  make  a  considerable  concession.  Under 
it  merchants  in  one  neutral  country  can,  without  risking  the 
condemnation  of  their  goods,  consign. them  for  discharge  in  the 
ports  of  another  neutral  country  to  the  order  of  buyers  or  others 
to  whom  the  principal  in  the  ordinary  course  of  business  finally 
transfers  the  control  of  the  goods.  They  are  not  concerned  to 
inquire  how  such  buyers  or  other  persons  intend  to  deal  with 
the  goods  after  delivery.  No  intention  on  the  part  of  the  latter 
to  forward  the  goods  to  the  enemy  Government  will  render  the 
goods  liable  to  condemnation.  This  is  no  small  concession. 

In  no  one  of  the  present  appeals  would  the  named  consignee 
have  had  any  real  control  over  the  goods  consigned  to  him.  In 
each  case  the  named  consignee  was  a  mere  agent  for  some  one 
else  and  bound  to  act  as  that  some  one,  whoever  he  might  be, 
should  direct.  Under  these  circumstances  their  Lordships  hold 
that  the  named  consignee  was  not  "the  consignee  of  the  goods" 
within  the  meaning  of  the  Order  in  Council. 

Each  of  these  appeals  must  therefore,  in  their  Lordships' 
opinion,  be  dismissed  with  costs,  the  costs  of  the  petition  to  ad- 
mit the  supplemental  record,  in  the  case  of  the  part  cargo  ex 
steamship  Louisiana  being  made  costs  in  that  appeal.  Their 
Lordships  will  humbly  advise  His  Majesty  accordingly. 


THE  NOORDAM. 

ADMIEALTY  DIVISION    (IN  PRIZE)    OF  THE  HIGH  COUET  OF  JUSTICE  OF 

ENGLAND.     1918. 
Law  Reports   [1919]   P.  57. 

Suit  for  condemnation  of  cargo  as  contraband  destined  for 
Germany. 

Under  a  bill  of  lading  dated  March  16,  1916,  nine  bales  of 
cotton  piece  goods  were  shipped  by  Amory,  Browne  &  Co.,  of 
New  York,  wholesale  exporters  of  cotton  goods,  on  the  Dutch 
steamship  Noordam  for  carriage  to  Amsterdam.  The  goods  were 
consigned  to  the  Netherlands  Oversea  Trust  Co.  [a  body  of 
Dutch  traders  of  repute  who  agreed  with  the  British  Govern- 
ment to  act  as  intermediaries  for  the  purpose  of  obtaining  from 


THE  NOORDAM.  763 

abroad  goods  consigned  to  Holland  for  Dutch  consumption],  for 
the  firm  of  S.  I.  De  Vries  of  Amsterdam  to  whom  Amory, 
Browne  &  Co.  had  sold  the  goods  through  a  Dutch  agen{  in  the 
ordinary  way  of  business.  Cotton  piece  goods  "capable  of  being 
used  in  the  manufacture  of  explosives"  were  made  absolute  con- 
traband on  October  14,  1915.  In  the  course  of  her  voyage  the 
Noordam  was  detained  at  Falmouth  pending  inquiry  as  to  her 
cargo,  and  ultimately  was  allowed  to  proceed  on  condition  that 
the  goods  in  question  were  returned  to  a  British  port  to  be 
placed  in  prize:  Consequently  the  buyers  refused  to  take  up 
the  shipping  documents  or  to  honour  the  draft  for  the  invoice 
value,  and  the  property  in  the  goods  remained  in  Amory, 
Browne  &  Co.  A  claim  was  put  in  on  behalf  of  Messrs.  De  Vries, 
but  was  abandoned,  and  a  claim  by  Amory,  Browne  &  Co.  was 
substituted. 

The  Crown  did  not  allege  that  the  claimants  intended  or  knew 
that  the  goods  were  to  be  sent  on  to  Germany.  The  evidence, 
however,  was  that  Messrs.  De  Vries  sold  large  quantities  of 
cotton  goods  to  buyers  in  Germany,  a  fact  they  had  endeavored 
to  conceal  when  their  books  were  examined  by  accountants  on  be- 
half of  the  Cotton  Export  Committee;  and  the  case  for  the 
Crown,  therefore,  was  that  if  the  goods  had  arrived  in  Holland 
Messrs.  De  Vries  would  have  resold  them  to  Germany  if  they 
could  have  evaded  the  vigilance  of  the  Netherlands  Oversea 
Trust  Co.,  which  it  was  admitted  would  have  exacted  guarantees 
as  to  neutral  consumption,  and  have  prevented  the  goods  being 
forwarded  to  Germany  if  it  could. 

The  claimants  contended  that  in  these  circumstances  the  doc- 
trine of  continuous  voyage  did  not  apply,  and  that  the  goods 
could  not  be  condemned.  .  .  . 

THE  PRESIDENT  (LORD  STERNDALE)  :  .  .  .  I  have  no  hesita- 
tion whatever  in  saying,  on  these  facts,  that  if  these  goods  had 
got  into  De  Vries'  hands  they  wrould,  if  De  Vries  could  possibly 
have  managed  it,  have  got  into  Germany,  and  that  the  intention 
of  De  Vries  in  getting  them  was  to  send  them  into  Germany  if 
they  could.  It  may  be  that  the  Netherlands  Oversea  Trust  Co. 
might  have  been  able  to  prevent  that ;  it  may  be  that  all  their 
precautions  would  have  failed  and  De  Vries  would  have  got 
them  into  Germany. 

It  was  argued,  however,  on  behalf  of  the  claimants,  that 
whatever  De  Vries'  intention  may  have  been  was  immaterial 
because,  in  order  to  bring  in  the  doctrine  of  what  is  called  ' '  con- 


764  CONTINUOUS  VOYAGE  OR  ENEMY  DESTINATION. 

tinuous  voyage,"  and  therefore  to  affect  these  goods  by  the 
enemy  destination,  it  must  be  shown  that  the  shippers  were 
parties  to  it;  that  if  the  shippers  were  innocent  this  doctrine 
could  not  be  applied  and  these  goods  could  not  be  condemned, 
because — as  I  understand  the  argument — a  continuous  voyage 
must  be  considered  as  that  which  the  shipper  sets  in  motion,  and 
which  he  intends  should  have  one  or  other  destination.  That 
contention  does  not  seem  to  me  to  be  sound.  I  do  not  think  the 
enemy  destination — which  is  a  fact — can  depend  upon  the  in- 
tention of  the  shipper  wThen  he  puts  the  goods  on  board.  The 
doctrine  was  stated  in  The  Axel  Johnson,  [1917]  P.  234,  238,  by 
the  late  President  in  the  words  of  the  Declaration  of  London, 
and  the  comment  of  Monsieur  L.  Renault  upon  it,  which  the 
learned  President  said  he  adopted.  The  Declaration  of  London 
states:  "Absolute  contraband  is  liable  to  capture  if  it  is  shown 
to  be  destined  to  territory  belonging  to  or  occupied  by  the  ene- 
my, or  to  the  armed  forces  of  the  enemy.  It  is  immaterial 
whether  the  carriage  of  the  goods  is  direct  or  entails  tranship- 
ment or  a  subsequent  transport  by  land."  Monsieur  Renault's 
comment  upon  it  is :  "  The  articles  included  in  the  list  in  art.  22 
are  absolute  contraband  when  they  are  destined  for  territory 
belonging  to  or  occupied  by  the  enemy,  or  for  his  armed  military 
or  naval  forces.  These  articles  are  liable  to  capture  as  soon  as 
a  final  destination  of  this  kind  can  be  shown  by  the  captor  to  ex- 
ist. It  is  not,  therefore,  the  destination  of  the  vessel  which  is 
decisive,  but  that  of  the  goods.  It  makes  no  difference  if  these 
goods  are  on  board  a  vessel  which  is  to  discharge  them  in  a 
neutral  port.  As  soon  as  the  'captor  is  able  to  show  that  they 
are  to  be  forwarded  from  there  by  land  or  sea  to  an  enemy 
country,  it  is  enough  to  justify  the  capture  and  subsequent  con- 
demnation of  the  cargo.  The  very  principle  of  continuous 
voyage,  as  regards  absolute  contraband,  is  established  by  art.  30. 
The  journey  made  by  the  goods  is  regarded  as  a  whole."  In  the 
statement  of  the  doctrine  in  The  Kim,  [1915]  P.  215,  275,  the 
late  President  said :  "I  have  no  hesitation  in  pronouncing  that, 
in  my  view,  the  doctrine  of  continuous  voyage,  or  transporta- 
tion, both  in  relation  to  carriage  by  sea  and  to  carriage  over- 
land, had  become  part  of  the  law  of  nations  at  the  commencement 
of  the  present  war,  in  accordance  with  the  principles  of  recog- 
nized legal  decisions,  and  with  the  view  of  the  great  body  of 
modern  jurists,  and  also  with  the  practice  of  nations  in  recent 
maritime  warfare.  The  result  is  that  the  Court  is  not  restricted 


THE  NOORDAM.  765 

in  its  vision  to  the  primary  consignments  of  the  goods  in  these 
cases  to  the  neutral  port  of  Copenhagen;  but  is  entitled,  and 
bound,  to  take  a  more  extended  outlook  in  order  to  ascertain 
whether  this  neutral  destination  was  merely  ostensible,  and,  if 
so,  what  the  real  ultimate  destination  was.  As  to  the  real  des- 
tination of  a  cargo,  one  of  the  chief  tests  is  whether  it  was 
consigned  to  the  neutral  port  to  be  there  delivered  for  the 
purpose  of  being  imported  into  the  common  stock  of  the  coun- 
try." Then  the  learned  President  discusses  the  cases  on  that 
point. 

It  seems  to  me  also  that  this  question  really  arose  in  The 
Beira  (unreported),  which  also  came  before  the  late  President. 
It  concerned  a  number  of  cases  of  sardines,  some  shipped  on 
the  Beira  and  some  on  another  ship.  The  shipper  in  that  case 
was  a  gentleman  who  resided  in  Lisbon,  but  apparently  had  no 
knowledge  of  the  intention  of  the  consignee,  who  was  agent  for 
an  enemy  firm,  to  send  the  goods  to  an  enemy  country.  In  that 
case  the  claim  was  made  by  the  shipper,  but  he  had  discounted 
the  bills  of  lading  with  a  Lisbon  bank,  and  it  did  not  appear 
that  he  had  reserved  any  right  to  the  disposition  of  the  goods. 
That  seems  to  me  to  be  immaterial.  The  learned  President  held 
that  the  goods  must  be  condemned  because  they  were  destined 
for  an  enemy  country.  In  that  case  the  goods  were  conditional 
contraband  intended  for  a  base  of  supply  or  the  armed  forces 
of  the  enemy.  That  question  of  course  does  not  arise  here. 

I  think  the  same  conclusion  is  really  involved  in  the  decision 
of  the  Privy  Council,  which  was  delivered  lately  in  The  Kron- 
prinzessin  Victoria,  [1919]  A.  C.  261.  In  that  case  it  was  held 
that  the  consignees  were  not  "dummy  consignees"  not  acting 
tinder  the  control  of  the  shipper,  but  were  persons  who  had 
bought  the  goods  for  the  purpose  of  getting  them  into  an  enemy 
country.  It  was  held  that  the  transaction  was  protected  by 
the  Declaration  of  London  as  modified  by  the  Order  in  Council 
of  October  29,  1914.  But  if  the  argument  before  me  had  been 
sound  it  seems  to  me  it  would  have  been  quite  immaterial  to 
consider  that  at  all,  because  there  would  have  been  no  continuous 
voyage  of  the  goods.  It  is  similar  to  the  case  now  before  me — 
the  shippers  not  retaining  control  of  the  goods  after  arrival  and 
delivery  to  the  consignees,  who  bought  them  for  the  purpose  of 
getting  them  to  an  enemy  country.  The  Privy  Council  assumed 
that  the  goods  under  those  conditions  would  be  liable  to  con- 
demnation unless  they  were  protected  by  the  Declaration  of 


766  CONTINUOUS  VOYAGE  OR  ENEMY  DESTINATION. 

London  as  modified  by  the  Order  in  Council.  Therefore  it  really 
does  involve  the  same  question,  it  seems  to  me,  because  those 
matters  of  the  Declaration  of  London  and  the  Order  in  Council 
are  quite  irrelevant  when  the  Court  is  dealing  with  absolute 
contraband. 

The  only  matter — I  do  not  know  that  this  point  was  really 
urged  upon  me  very  much — which  it  seemed  to  me  might  raise 
a  doubt  was  that  the  consignment  was  to  the  Netherlands  Over- 
sea Trust  Co.  There  is  no  question  that  the  Netherlands  Over- 
sea Trust  Co.  are  doing  what  is  absolutely  right,  and  no  doubt 
they  would  have  done  what  they  could  to  prevent  these  goods 
reaching  Germany.  But  I  do  not  think  that  that  is  material. 
The  question  is,  what  is  the  ultimate  destination,  what  is  the 
destination  intended  by  the  person  who  will  have  the  control 
of  the  goods  when  they  arrive?  If  they  had  arrived  at  the 
neutral  port  De  Vries  would  have  had  the  control,  subject  to 
this,  that  they  would  have  had  to  give  undertakings  to  the 
Netherlands  Oversea  Trust  Co.  that  they  would  not  send  the 
goods  into  an  enemy  country.  But  De  Vries  were  the  pur- 
chasers; they  would  have  become  the  owners  of  the  goods,  and 
their  intention,  I  have  no  doubt,  was  to  send  them  into  enemy 
countries.  If  that  be  so,  in  my  opinion  it  cannot  be  said  that 
there  is  not  an  enemy  destination  simply  because  some  associa- 
tion, such  as  the  Netherlands  Oversea  Trust  Co.,  would  do  all 
they  could  to  frustrate  it. 

For  these  reasons  I  think  the  goods  must  be  condemned  as 
good  and  lawful  prize.  It  is  hard,  I  know,  upon  shippers  who 
are  innocent.  But  unfortunately  the  exercise  of  legal  rights 
does  from  time  to  time  inflict  hardship  upon  others.  That, 
however,  is  no  reason  why  I  should  refrain  from  saying  what 
I  think  is  the  proper  conclusion  to  be  come  to  in  regard  to 
these  goods.  .  .  . 

NOTE. — The  doctrine  of  continuous  voyage,  which  might  perhaps  be 
more  accurately  described  as  the  doctrine  of  enemy  destination, 
originated  in  attempts  to  evade  the  famous  Rule  of  1756  by  which 
neutrals  are  forbidden  to  participate  in  a  trade  from  which  they  were 
excluded  in  time  of  peace.  The  doctrine  has  often  been  ascribed  to 
Lord  Stowell,  but  it  was  applied  by  English  judges  long  before  his 
time.  See  The  Africa  (1762),  Burrell,  228,  and  The  St.  Croix  (1763), 
Burrell,  228.  For  early  discussions  of  the  doctrine  in  reference  to 
prohibited  trade  see  The  Welvaart  (1799),  1  C.  Robinson,  122;  The 
Polly  (1800),  2  Ib.  361;  The  Maria  (1805),  5  Ib.  365;  The  Johanna 
Tholen  (1805),  6  Ib.  72;  The  Ebenezer  (1805),  6  Ib.  250;  and  The 


NOTE.  767 

Thomyris  (1808),  1  Edwards,  17.  In  the  first  cases  the  court  was 
not  exacting  as  to  the  evidence  that  the  intermediate  port  was  the 
bona  fide  terminus  of  the  voyage.  Landing  of  the  cargo  and  payment 
of  duty  were  especially  regarded  as  conclusive.  But  the  profits  in 
such  transactions  were  so  great  and  the  volume  of  business  became 
so  large  that  in  The  Essex,  decided  by  the  Lords  of  Appeal  in  1805 
(5  C.  Robinson,  368),  the  court  declined  to  accept  such  evidence  as 
conclusive,  and  the  better  known  case  of  The  William  (5  C.  Robin- 
son, 395)  established  the  rule  which  has  ever  since  been  followed.  The 
doctrine  of  enemy  destination  was  next  extended  to  vessels  trading 
with  the  enemy,  The  Jonge  Pieter  (1801),  4  C.  Robinson,  79;  The 
Matchless  (1822),  1  Haggard,  97,  106;  The  Eliza  Ann  (1824),  1  Hag- 
gard, 257;  Jecker  v.  Montgomery  (1855),  18  Howard,  110,  114;  The 
Mashona  (1900),  Cape  of  Good  Hope,  17  S.  C.  R.  135. 

The  case  of  The  Jesus,  which  arose  in  the  Admiralty  Court  in  1756, 
and  was  appealed  to  the  Lords  of  Appeal  in  1759  and  decided  by 
them  in  1761,  shows  that  the  principle  of  final  destination  as  applied 
to  contraband  cargoes  was  known  to  the  judges  of  that  day.  Bur- 
rell,  164.  See  also  the  decisions  of  Lord  Stowell  in  the  Twende 
Brodre  (1801),  4  C.  Robinson,  33,  and  The  Eagle  (1803),  5  C.  Robin- 
son, 401.  A  better  known  instance  of  its  application  to  the  trans- 
portation of  contraband  occurred  in  the  case  of  The  Frau  Anna 
Howina  (1855),  decided  by  the  French  Prize  Court  in  the  Crimean 
War.  See  Calvo,  V.  sec.  2767.  This  decision  seems  to  have  attracted 
little  attention  and  when  the  same  question  was  raised  in  the 
prize  courts  in  the  American  Civil  War,  it  was  never  cited. 

The  doctrine  of  enemy  destination  in  connection  with  blockades  was 
hinted  at  in  several  cases  which  arose  in  the  Napoleonic  wars,  e.  g.. 
The  Maria  (1805),  6  C.  Robinson,  201;  The  Lisette  (1807),  6  Ib.  387; 
The  Mercurius  (1808),  1  Edwards,  53;  but  except  possibly  in  the 
case  of  The  Charlotte  Sophia  (1806),  6  C.  Robinson,  204?i,  a  case 
imperfectly  reported,  no  vessel  was  condemned  on  that  ground  until 
the  American  Civil  War.  American  cases  besides  The  Peterhoff  and 
The  Springbok  applying  the  doctrine  either  to  the  carriage  of  con- 
traband or  the  breach  of  blockade  (the  two  are  not  always  distin- 
guished) are  The  Dolphin  (1863),  7  Fed.  Cases,  862;  The  Pearl  (1863), 
19  Ib.  54;  The  Stephen  Hart  (1863),  Blatchford,  Prize  Cases,  387 
(the  most  elaborate  discussion  of  the  subject  in  the  books) ;  The 
Circassian  (1864),  2  Wallace,  135;  The  Bermuda  (1866),  3  Wallace, 
514. 

The  doctrine  of  continuous  voyage  or  enemy  destination  was 
applied  in  the  Chino-Japanese  War  of  1894-1895,  when  the  British 
mail  steamer  Gaelic,  en  route  from  San  Francisco  to  the  British  port 
of  Hong-Kong,  made  a  regular  stop  at  Yokohama  and  was  searched 
by  the  Japanese  authorities  because  suspected  of  carrying  persons 
who  were  on  their  way  to  enter  the  Chinese  service.  See  Takahashi, 
Cases  on  International  Law  during  the  Chino-Japanese  War,  xvii,  52; 
Westlake,  Collected  Papers,  461.  In  1896,  the  Doelwijk,  a  Dutch  ship 
with  a  cargo  of  arms,  was  captured  on  the  high  seas  by  an  Italian 
cruiser  and  in  the  first  prize  case  heard  in  the  new  kingdom  of  Italy 


768   CONTINUOUS  VOYAGE  OK  ENEMY  DESTINATION. 

was  condemned  by  the  Italian  Prize  Court  at  Rome  on  the  ground 
that  the  cargo  was  to  be  landed  at  Djiboutil,  a  French  port,  for 
shipment  overland  to  Abyssinia  with  which  Italy  was  then  at  war. 
See  articles  by  M.  Prosper  Fedozzi  in  Revue  de  Droit  International, 
XXIX,  55,  75-80,  and  by  M.  Giulio  Diena  in  Journal  du  Droit  Inter- 
national Prive,  XXIV,  268;  Pillet,  Les  Lois  Actuelles  de  la  Guerre, 
sec.  216.  The  decision  of  the  Italian  Prize  Court  is  printed  in  2 
Commercial  Cases,  202.  There  was  an  important  discussion  of  the 
doctrine  of  continuous  voyage  at  the  time  of  the  South  African  War 
in  connection  with  the  seizure,  by  British  cruisers  of  the  Bundesrath 
and  other  German  vessels  bound  for  the  neutral  Portuguese  port  of 
Lorenzo  Marques  on  Delagoa  Bay.  It  was  through  this  port  that  the 
Boer  republics,  which  had  no  seacoast,  were  obliged  to  carry  on  their 
commerce  with  the  outside  world.  The  British  Government  was 
unable  to  show  that  the  cargoes  of  the  German  vessels  were  such 
as  to  justify  their  detention,  but  in  the  discussion  of  the  legal  ques- 
tions involved,  Lord  Salisbury  adopted  the  views  set  forth  in  the 
American  decisions  and  quoted  the  German  jurist  Bluntschli  to  the 
effect  that  if  the  ships  or  cargoes  are  sent  te  a  neutral  port  only  to 
facilitate  their  reaching  the  enemy  they  are  contraband  and  subject 
to  confiscation.  Moore,  Digest,  VII,  739.  In  the  Turco-Italian  War 
in  1912  an  Italian  cruiser  seized  the  French  steamer  Carthage,  bound 
from  France  to  the  French  colony  of  Tunis,  because  it  had  on  board 
an  aeroplane  alleged  to  be  intended  for  the  Turkish  forces  in  Tripoli. 
The  case  was  submitted  to  the  Permanent  Court  of  Arbitration  at 
The  Hague,  which  decided  that  there  was  insufficient  evidence  to  es- 
tablish the  hostile  destination  of  the  aeroplane.  See  Wilson,  The 
Hague  Arbitration  Cases,  352.  The  first  application  of  the  doctrine 
of  enemy  destination  in  the  Great  War  seems  to  have  been  made  by 
the  British  Prize  Court  in  Malta  in  the  case  of  The  Venizelos,  de- 
cided July  15,  1915.  A  cargo  of  food  on  a  neutral  vessel  consigned 
by  way  of  an  Italian  port  to  a  commercial  house  in  Switzerland  was 
condemned  as  conditional  contraband  since  the  claimants  were  un- 
able to  prove  that  the  goods  had  an  innocent  destination.  See  Journal 
of  the  Society  of  Comparative  Legislation,  (N.  S.)  XVI,  70.  On  July 
8,  1916,  there  was  published  in  the  London  Gazette  an  Order  in  Council 
setting  forth  various  principles  of  prize  law  to  be  observed.  Among 
them  was  this: 

The  principle  of  continuous  voyage  or  ultimate  destination 
shall  be  applicable  both  in  cases  of  contraband  and  blockade. 

After  the  decision  of  Sir  Samuel  Evans  in  The  Kim,  the  doctrine 
of  enemy  destination  was  applied  to  a  great  variety  of  situations. 
The  close  proximity  to  Germany  of  such  neutral  maritime  states  as 
Holland,  Denmark,  Norway  and  Sweden  and  the  enormous  increase 
in  exports  from  those  countries  to  Germany  led  to  the  establishment 
of  the  rule  in  both  England  and  France  that  neutral  consignees  must 
prove  that  goods  consigned  to  them  did  not  have  an  enemy  destina- 
tion, The  Hillerod  (1917),  L.  R.  [1918]  A.  C.  412;  The  Insulinde 
(France,  1915),  Revue  General  de  Droit  International,  XXII,  18  J.  An 


NOTE.  769 

Intent  to  submit  conditional  contraband  goods  to  public  auction  in  the 
neutral  country  to  which  they  are  consigned  does  not  relieve  the 
claimant  of  the  burden  of  proving  that  the  goods  do  not  have  an 
enemy  destination,  The  Nome  (1921),  L.  R.  [1921]  1  A.  C.  765.  A 
claimant  may  be  obliged  to  exhibit  his  books  in  order  to  show  the 
increase  in  the  volume  of  his  trade  to  Germany,  The  Consul  Corfitzon 
(1917),  L.  R.  [1917]  A.  C.  550.  A  cargo  of  wool  (absolute  contra- 
band) consigned  to  a  neutral  firm  in  Sweden  but  intended  to  be 
sent  to  Germany  for  combing  and  then  returned  to  Sweden  for  manu- 
facture was  condemned  on  the  ground  that  it  was  on  its  way  to 
enemy  territory  even  though  that  was  not  its  ultimate  destination, 
The  Axel  Johnson  (1921),  L.  R.  [1921]  1  A.  C.  473. 

For  the  effect  of  the  transshipment  of  a  cargo  belonging  to  a 
neutral  from  an  enemy  to  a  neutral  ship  in  a  neutral  port,  see  The 
Rijn  (1917),  L.  R.  [1917]  P.  145.  As  to  the  status  of  raw  materials 
consigned  to  a  neutral  country  where  they  are  to  be  made  into  goods 
for  the  enemy  see  The  Balto  (1917),  L.  R.  [1917]  P.  79.  The  devices 
resorted  to  by  Germany  to  import  goods  from  America  through  neu- 
tral countries  are  well  described  by  means  of  intercepted  and  decoded 
letters  in  The  Dirigo  (1919),  L.  R.  [1919]  P.  204. 

The  doctrine  of  enemy  destination  was  applied  by  the  German  prize 
courts  in  the  Great  War.  A  Danish  steamer  bound  to  Copenhagen 
with  a  cargo  part  of  which  was  destined  to  Germany  was  stopped 
by  a  British  cruiser,  and  was  allowed  to  proceed  to  Denmark  in  order 
to  unload  the  goods  bona  fide  destined  for  Denmark  but  was  required  to 
give  a  bond  that  it  would  return  to  England  with  the  cargo  intended  for 
Germany.  On  the  way  to  Denmark  it  was  captured  by  a  German 
cruiser,  and  its  cargo  was  condemned  on  the  ground  that  the  bond 
which  compelled  the  vessel  to  return  to  England  gave  it  an  enemy 
destination,  The  Kiew  (1917),  Entscheidungen,  241.  See  also  The 
Brage  (1917),  Ib.  267;  The  Lupus  (1917),  Ib.  377;  The  Mjolner  (1917), 
Ib.  421. 

In  view  of  the  decision  of  the  French  Prize  Court  in  The  Frou 
Howina,  of  the  Italian  Prize  Court  in  The  Doelwijk,  and  of  the 
British  Prize  Courts  in  The  Kim  and  other  cases,  and  of  the  German 
Prize  Courts  in  several  cases,  and  in  view  of  the  position  taken  by 
Japan  in  the  case  of  The  Gaelic,  by  Great  Britain  in  the  case  of  The 
Bundesrath  and  in  her  Orders  in  Council  of  July  8,  1916,  and  by 
Italy  in  the  case  of  The  Carthage,  the  much  reviled  decision  in  the 
case  of  The  Springbok  may  now  be  regarded  as  established  law. 

The  doctrine  of  enemy  destination  is  closely  analogous  to  the  rule 
followed  by  the  American  courts  in  determining  whether  a  particular 
transaction  is  or  is  not  interstate  commerce.  Just  as  the  claimants 
in  The  William  tried  to  divide  one  voyage  into  two  by  transshipment 
at  an  intermediate  port,  so  shippers  on  American  railways  have  tried 
to  break  up  an  interstate  transaction  into  its  component  parts  in 
order  to  make  it  appear  to  be  an  intrastate  shipment.  It  is  well 
settled,  however,  that  whenever  a  commodity  begins  to  move  in  inter- 
state commerce  it  becomes  a  part  of  interstate  commerce  and  falls 
under  Federal  jurisdiction  even  though  it  has  not  yet  passed  from 


70  CONTINUOUS  VOYAGE  OR  ENEMY  DESTINATION. 


the  State  of  origin,  The  Daniel  Ball  (1871),  10  Wallace,  557,  565.  A 
shipment  which  is  really  interstate  will  be  treated  as  such,  regard- 
less of  the  agencies  employed  or  the  form  of  the  bill  of  lading,  Rail- 
road Commission  of  Louisiana  v.  Texas  &  Pacific  Ry.  (1913),  229 
U.  S.  336;  Baer  Brothers  Mercantile  Co.  v.  Denver  &  Rio  Grande  Ry. 
(1914),  233  U.  S.  479. 

The  literature  of  the  doctrine  of  continuous  voyage  or  enemy  des- 
tination is  extensive.  In  an  unusually  careful  article  "Early  Casea 
on  the  Doctrine  of  Continuous  Voyages"  in  Am.  Jour.  Int.  Law,  IV, 
823,  Mr.  L.  H.  Woolsey  showed  that  the  doctrine  did  not  originate 
with  Lord  Stowell  but  was  applied  by  British  Prize  Courts  in  the 
Seven  Years'  War.  See  also  C.  B.  Elliott,  "The  Doctrine  of  Continu- 
ous Voyages,"  76.,  I,  61,  C.  N.  Gregory,  "The  Doctrine  of  Continuous 
Voyage,"  Report  of  26th  Conference,  Int.  Law  Assoc.,  120;  Int.  Law 
Topics,  1905,  77;  Int.  Law  Sit.  1910,  90;  Westlake,  Collected  Papers, 
461;  Baty,  Int.  Law  in  South  Africa,  1-44;  Pyke,  The  Law  of  Contra- 
band of  War,  ch.  xii;  Pyke,  "The  Kim  Case,"  Law  Quarterly  Review, 
XXXII,  50;  Cobbett,  Cases  and  Opinions,  II,  466;  Bonfils  (Fauchille), 
sec.  1567;  Hyde,  II,  602;  Moore,  Digest,  VII,  383,  697. 


CHAPTER  XXI. 

THE  BIGHTS  AND  DUTIES  OF  NEUTRALS. 

SECTION  1.    THE  INVIOLABILITY  OF  NEUTRAL  TERRITORY. 

THE  TWEE  GEBROEDERS. 

HIGH  COURT  OF  ADMIRALTY  OF  ENGLAND.     1800. 
3  C.  Robinson,  162. 

Sir  "W.  SCOTT  [LORD  STOWELL] — This  ship  was  taken  on  the 
14th  July  1799,  on  a  voyage  from  Embden  to  Amsterdam, 
which  was  then  under  blockade ;  a  claim  has  been  given  by  the 
Prussian  government,  asserting  the  capture  to  have  been  made 
within  the  Prussian  territory.  In  the  course  of  the  discussion, 
which  this  suit  has  produced,  it  has  been  contended  that  al- 
though the  act  of  capture  itself  might  not  take  place  within  the 
neutral  territory,  yet,  that  the  ship  to  which  the  capturing  boats 
belonged  was  actually  lying  within  the  neutral  limits ;  and  there- 
fore, that  wherever  the  place  of  capture  might  be,  the  station 
of  the  ship  was  in  itself  sufficient  to  affect  the  legality  of  the 
capture. 

Upon  the  question  so  proposed,  the  first  fact  to  be  determined 
is,  the  character  of  the  place  where  the  capturing^  ship  lay; 
whether  she  was  actually  stationed  within  those  portions  of  land 
and  water,  or  of  something  between  water  and  land,  which  are 
considered  to  be  within  the  limits  of  the  Prussian  territory? 
.  .  .  I  am  of  opinion,  that  the  ship  was  lying  within  those 
limits,  in  which  all  direct  hostile  operations  are  by  the  law  of 
nations  forbidden  to  be  exercised.  That  fact  being  assumed  I 
have  only  to  inquire,  whether  the  ship  being  so  stationed,  the 
capture  which  took  place,  was  made  under  such  circumstances, 
as  oblige  us  to  consider  it  as  an  act  of  violence,  committed  within 
the  protection  of  a  neutral  territory. 

It  is  said  that  the  ship  was,  in  all  respects,  observant  of  the 
peace  of  the  neutral  territory;  that  nothing  was  done  by  her, 

771 


772  RIGHTS  AND  DUTIES  OF  NEUTRALS. 

which  could  affect  the  right  of  territory,  or  from  which  any 
inconvenience  could  arise  to  the  country,  within  those  limits 
she  was  lying ;  inasmuch  as  the  hostile  force  which  she  employed, 
was  applied  to  the  captured  vessel  lying  out  of  the  territory. 
But  that  is  a  doctrine  that  goes  a  great  deal  too  far;  I  am  of 
opinion,  that  no  use,  of  a  neutral  territory,  for  the  purposes 
of  war,  is  to  be  permitted;  I  do  not  say  remote  uses,  such  as 
procuring  provisions  and  refreshments,  and  acts  of  that  nature, 
which  the  law  of  nations  universally  tolerates ;  but  that,  no  proxi- 
mate acts  of  war  are  in  any  manner  to  be  allowed  to  originate  on 
neutral  grounds;  and  I  cannot  but  think,  that  such  an  act  as 
this,  that  a  ship  should  station  herself  on  neutral  territory,  and 
send  out  her  boats  on  hostile  enterprises,  is  an  act  of  hostility 
much  too  immediate  to  be  permitted:  for,  suppose  that  even  a 
direct  hostile  use  should  be  required,  to  bring  it  within  the  pro- 
hibition of  the  law  of  nations;  nobody  will  say,  that  the  very 
act  of  sending  out  boats  to  effect  a  capture,  is  not  itself  an  act 
directly  hostile — not  complete  indeed,  but  inchoate,  and  clothed 
with  all  the  characters  of  hostility.  If  this  could  be  defended,  it 
might  as  well  be  said,  that  a  ship  lying  in  a  neutral  station  might 
fire  shot  on  a  vessel  lying  out  of  the  neutral  territory ;  the  injury 
in  that  case  would  not  be  consummated,  nor  received  on  neutral 
ground ;  but  no  one  would  say,  that  such  an  act  would  not  be  an 
hostile  act,  immediately  commenced  within  the  neutral  territory : 
And  what  does  it  signify  to  the  nature  of  the  act,  considered 
for  the  present  purpose,  whether  I  send  out  a  cannon-shot  which 
shall  compel  the  submission  of  a  vessel  lying  at  two  miles  dis- 
tance, or  whether  I  send  out  a  boat  armed  and  manned  to  effect 
the  very  same  thing  at  the  same  distance?  It  is  in  both  cases 
the  direct  act  of  the  vessel  lying  in  neutral  ground ;  the  act  of 
hostility  actually  begins,  in  the  latter  case,  with  the  launching 
and  manning  and  arming  the  boat,  that  is  sent  out  on  such  an 
errand  of  force. 

If  it  were  necessary  therefore  to  prove,  that  a  direct  and  im- 
mediate act  of  hostility  had  been  committed;  I  should  be  dis- 
posed to  hold  that  it  was  sufficiently  made  out  by  the  facts  of 
this  case. — But  direct  hostility  appears  not  to  be  necessary ;  for 
whatever  has  an  immediate  connection  with  it  is  forbidden :  you 
cannot,  without  leave,  carry  prisoners  or  booty  into  a  neutral 
territory,  there  to  be  detained,  because  such  an  act  is  in  imme- 
diate continuation  of  hostility.  In  the  same  manner,  an  act  of 
hostility  is  not  to  take  its  commencement  on  neutral  ground: 


THE  ELIZA  ANN.  773 

It  is  not  sufficient  to  say  it  is  not  completed  there — you  are  not 
to  take  any  measure  there,  that  shall  lead  to  immediate  violence ; 
you  are  not  to  avail  yourself  of  a  station,  on  neutral  territory, 
making  as  it  were  a  vantage  ground  of  the  neutral  Country,  a 
Country  which  is  to  carry  itself  with  perfect  equality  between 
both  belligerents,  giving  neither  the  one  or  the  other  any  ad- 
vantage. Many  instances  have  occurred,  in  which  such  an  ir- 
regular use  of  a  neutral  Country  has  been  warmly  resented,  and 
Some  during  the  present  war;  the  practice  which  has  been  tol- 
erated in  the  northern  states  of  Eifrope,  of  permitting  French 
privateers  to  make  stations  of  their  ports,  and  to  sally  out  to 
capture  British  vessels  in  that  neighborhood,  is  of  that  number; 
and  yet  even  that  practice,  unfriendly  and  noxious  as  it  is,  is 
less  than  that  complained  of  in  the  present  instance;  for  here 
the  ship,  without  sallying  out  at  all,  is  to  commit  the  hostile  act. 
Every  government  is  perfectly  justified  in  interposing  to  dis- 
courage the  commencement  of  such  a  practice;  for  the  incon- 
venience to  which  the  neutral  territory  will  be  exposed  is  ob- 
vious; if  the  respect  due  to  it  is  violated  by  one  party,  it  will 
soon  provoke  a  similar  treatment  from  the  other  also;  till,  in- 
stead of  neutral  ground,  it  will  soon  become  the  theatre  of  war. 
On  these  grounds,  I  am  of  opinion,  that  this  capture  cannot 
be  maintained,  and  I  direct  these  vessels  to  be  restored. 


THE  ELIZA  ANN. 

HIGH  COUBT  OF  ADMIRALTY  OF  ENOLAin).    1813. 
1  Dodson,  244. 

These  were  three  cases  of  American  ships,  laden  with  hemp, 
iron  and  other  articles,  and  seized  in  Hanoe  Bay,  on  the  llth  of 
August,  1812,  by  His  Majesty's  ship  Vigo,  which  was  then  tying 
there  with  other  British  ships  of  war.  A  claim  was  given,  under 
the  direction  of  the  Swedish  minister,  for  the  ships  and  cargoes, 
"as  taken  within  one  mile  of  the  mainland  of  Sweden,  and 
within  the  territory  of  His  Majesty  the  King  of  Sweden,  con 
trary  to  and  in  violation  of  the  law  of  nations,  and  the  territory 
and  jurisdiction  of  His  said  Majesty." 

SIR  W.   SCOTT    [LORD   STOWELL]. — These  vessels   came   into 


774  RIGHTS  AND  DUTIES  OF  NEUTRALS. 

Hanoe  Bay  for  the  purpose  of  taking  the  benefit  of  British  con- 
voy, and  were  seized  in  consequence  of  the  order  for  the  deten- 
tion of  American  property.  This  order  has  been  since  followed 
up  by  a  declaration  of  war ;  the  ships,  therefore,  would  be  liable 
to  condemnation,  unless  it  can  be  shown  that  they  are  entitled  to 
some  special  protection. 

A  claim  has  been  given  by  the  Swedish  consul,  for  these  ships 
and  cargoes,  as  having  been  taken  within  the  territories  of  the 
King  of  Sweden,  and  in  violation  of  his  territorial  rights.  This 
claim  could  not  have  been  given  by  the  Americans  themselves; 
for  it  is  the  privilege,  not  of  the  enemy,  but  of  the  neutral 
country,  which  has  a  right  to  see  that  no  act  of  violence  is  com- 
mitted within  its  jurisdiction.  When  a  violation  of  neutral 
territory  takes  place,  that  country  alone,  whose  tranquillity  has 
been  disturbed,  possesses  the  right  of  demanding  reparation  for 
the  injury  which  she  has  sustained.  It  is  a  principle  that  has 
been  established  by  a  variety  of  decisions,  both  in  this  and  in 
the  superior  Court,  that  the  enemy,  whose  property  has  been 
captured,  cannot  himself  give  the  claim,  but  must  resort  to  the 
neutral  for  his  remedy.  Acts  of  violence  by  one  enemy  against 
another  are  forbidden  within  the  limits  of  a  neutral  territory, 
unless  they  are  sanctioned  by  the  authority  of  the  neutral  state, 
which  it  has  the  power  of  granting  to  either  of  the  belligerents, 
subject,  of  course,  to  a  responsibility  to  the  other.  A  neutral 
state  may  grant  permission  for  such  acts  beforehand,  or  acqui- 
esce in  them  after  they  shall  have  taken  place,  or  it  may,  as  has 
been  done  in  the  present  instance,  step  forward  and  claim  the 
property. 

I  do  not  observe  it  to  be  stated  in  the  claim,  that  the  sovereign 
on  whose  behalf  it  was  given  was  a  neutral  at  the  time  when  the 
transaction  took  place.  But,  in  order  to  give  effect  to  a  claim  of 
this  kind,  it  must  be  shewn  that  the  party  making  it  was  then 
in  a  state  of  clear  and  indisputable  neutrality.  If  he  has  shewn 
more  favour  to  one  side  than  to  the  other,  if  he  has  excluded  the 
ships  of  one  of  the  belligerents  from  his  ports,  and  hospitably 
received  those  of  the  other,  he  cannot  be  considered  as  acting 
with  the  necessary  impartiality.  I  do  not  think  a  country,  shew- 
ing such  an  invidious  distinction,  entitled  to  claim  in  the  char- 
acter of  a  neutral  state.  The  high  privileges  of  a  neutral  are 
forfeited  by  the  abandonment  of  that  perfect  indifference  be- 
tween the  contending  powers  in  which  the  essence  of  neutrality 
consists. 


THE  ANNE.  775 

A  claim,  however,  has  been  given  by  the  Swedish  minister. 
Now,  in  order  to  support  and  give  effect  to  this  claim,  two  things 
are  necessary  to  be  established. — First,  it  is  requisite  that  Swe- 
den should  appear  to  have  been  in  a  state  of  perfect  neutrality 
at  the  time  when  the  seizure  was  made. — Secondly,  it  must  be 
shewn  that  the  act  of  violence  was  committed  within  the  limits 
of  Swedish  territory.  For,  if  the  scene  of  hostility  did  not  lie 
within  the  territories  of  the  neutral  state,  then  has  there  been 
no  violation  of  its  neutral  rights.  .  .  . 

The  first  question  then  is,  how  far,  in  August,  1812,  Sweden 
was  to  be  considered  as  a  neutral  country.  .  .  .  [The  learned 
judge  finds  that  Great  Britain  and  Sweden  had  been  at  war,  and 
although  a  treaty  of  peace  had  been  signed  at  the  time  of  the 
seizure,  it  had  not  yet  been  ratified.  Hence  the  court  holds  that 
the  two  countries  were  still  at  war.]  But,  in  order  to  give 
validity  to  the  present  claim  ...  it  must  be  shewn  that  the 
place  of  capture  was  within  the  Swedish  territories:  and  I  am 
of  opinion  that  it  was  not.  Hanoe  had  been  taken  possession  of 
by  a  British  force,  and  that  possession  had  not  been  disturbed. 
.  .  .  There  was  no  semblance  of  Swedish  authority.  .  .  . 
I  am  of  opinion  that  the  claim  which  has  been  given  fails  upon 
the  two  essential  points  .  .  .  and  consequently  that  these 
ships  and  cargoes  are  liable  to  condemnation. 


THE  ANNE. 

SUPREME  COURT  OF  THE  UNITED  STATES.     1818. 
3  Wheaton,  435. 

Appeal  to  the  circuit  court  for  the  district  of  Maryland. 

The  British  ship  Anne,  with  a  cargo  belonging  to  a  British 
subject,  was  captured  by  the  [American]  privateer  Ultor  while 
lying  at  anchor  near  the  Spanish  part  of  the  island  of  St.  Do- 
mingo, on  the  13th  of  March,  1815,  and  carried  into  New  York 
for  adjudication.  .  .  .  Prize  proceedings  were  duly  insti- 
tuted against  the  ship  and  cargo,  and  a  claim  was  afterwards  in- 
terposed in  behalf  of  the  Spanish  consul,  ...  on  account 
of  an  asserted  violation  of  the  neutral  territory  of  Spain.  .  .  . 
The  district  court  rejected  the  claim,  and  pronounced  a  sentence 


776  EIGHTS  AND  DUTIES  OF  NEUTRALS. 

of  condemnation  to  the  captors.  Upon  appeal  to  the  circuit 
court,  peace  having  taken  place,  the  British  owner  ...  in- 
terposed a  claim  for  the  property,  and  the  decree  of  the  district 
court  was  affirmed.  .  .  . 

Mr.  JUSTICE  STORY  delivered  the  opinion  of  the  court.  .  .  . 
[The  learned  judge  finds  that  the  capture  was  made  in  Spanish 
waters,  but'  that  the  Spanish  consul  had  not  been  authorized  by 
his  government  to  interpose  a  claim  for  the  restitution  of  the 
vessel.] 

The  claim  of  the  Spanish  government  for  the  violation  of  its 
neutral  territory  being  thus  disposed  of,  it  is  next  to  be  con- 
sidered whether  the  British  claimant  can  assert  any  title  founded 
upon  that  circumstance.  By  the  return  of  peace,  the  claimant 
became  rehabilitated  with  the  capacity  to  sustain  a  suit  in  the 
courts  of  this  country ;  and  the  argument  is,  that  a  capture  made 
in  a  neutral  territory  is  void ;  and,  therefore,  the  title  by  capture 
being  invalid,  the  British  owner  has  a  right  to  restitution.  The 
difficulty  of  this  argument  rests  in  the  incorrectness  of  the 
premises.  A  capture  made  within  neutral  waters  is,  as  between 
enemies,  deemed,  to  all  intents  and  purposes,  rightful ;  it  is  only 
by  the  neutral  sovereign  that  its  legal  validity  can  be  called  in 
question ;  and  as  to  him  and  him  only,  is  it  to  be  considered  void. 
The  enemy  has  no  rights  whatsoever;  and  if  the  neutral  sover- 
eign omits  or  declines  to  interpose  a  claim,  the  property  is  con- 
demnable,  jure  belli,  to  the  captors.  This  is  the  clear  result  of 
the  authorities;  and  the  doctrine  rests  on  well  established  prin- 
ciples of  public  law. 

There  is  one  other  point  in  the  case  which,  if  all  other  diffi- 
culties were  removed,  would  be  decisive  against  the  claimant. 
It  is  a  fact,  that  the  captured  ship  first  commenced  hostilities 
against  the  privateer.  This  is  admitted  on  all  sides;  and  it  is 
no  excuse  to  assert  that  it  was  done  under  a  mistake  of  the 
national  character  of  the  privateer,  even  if  this  were  entirely 
made  out  in  the  evidence.  While  the  ship  was  lying  in  neutral 
waters,  she  was  bound  to  abstain  from  all  hostilities,  except  in 
self-defence.  The  privateer  had  an  equal  title  with  herself  to 
the  neutral  protection,  and  was  in  no  default  in  approaching 
the  coast  without  showing  her  national  character.  It  was  a 
violation  of  that  neutrality  which  the  captured  ship  was  bound 
to  observe,  to  commence  hostilities  for  any  purpose  in  these 
waters;  for  no  vessel  coming  thither  was  bound  to  submit  to 


THE  FLORIDA.  777 

search,  or  to  account  to  her  for  her  conduct  or  character.  When 
therefore,  she  commenced  hostilities,  she  forfeited  the  neutral 
protection,  and  the  capture  was  no  injury  for  which  any  redress 
could  be  rightfully  sought  from  the  neutral  sovereign. 

The  conclusion  from  all  these  views  of  the  case  is,  that  the 
ship  and  cargo  ought  to  be  condemned  as  good  prize  of  war. 

Decree  affirmed. 


THE  FLORIDA 

SUPREME  COUBT  OF  THE  UNITED  STATES.    1879. 
101  U.  S.  37. 

Appeal  from  the  Supreme  Court  of  the  District  of  Columbia. 

[On  Oct.  7,  1864,  the  Confederate  steamer  Florida  was  cap- 
tured by  the  American  steamer  Wachusett  in  the  port  of  Bahia, 
Brazil,  and  brought  to  Hampton  Roads,  where  in  a  collision  she 
was  sunk.  The  act  of  the  captain  of  the  Wachusett  was  dis- 
avowed by  the  United  States.  The  captain  having  libelled  the 
Florida  as  a  prize  of  war,  his  libel  was  dismissed  by  the  lower 
court,  and  he  appealed.] 

Mr.  Justice  SWAYNE,  .  .  .  delivered  the  opinion  of  the 
court. 

The  legal  principles  applicable  to  the  facts  disclosed  in  the 
record  are  well  settled  in  the  law  of  nations,  and  in  English 
and  American  jurisprudence.  Extended  remarks  upon  the  sub- 
ject are,  therefore,  unnecessary.  See  Grotius,  De  Jure  Belli,  b. 
3,  c.  4,  sect.  8 ;  Bynkershoek,  61,  c.  8 ;  Burlamaqui,  vol.  ii.  pt.  4, 
c.  5,  sect.  19;  Vattel,  b.  3,  c.  7,  sect.  132;  Dana's  Wheaton,  sect. 
429  and  note  208 ;  3  Rob.  Ad.  Rep.  373 ;  5  id.  21  ;  The  Anne,  3 
Wheat.  435 ;  La  Amistad  de  Rues,  5  id.  385 ;  The  Santissima 
Trinidad,  7  id.  283,  496 ;  The  Sir  William  Peel,  5  Wall.  517  ;  The 
Adela,  6  id.  266;  1  Kent,  Com.  (last  ed.),  pp.  112,  117,  121. 

Grotius,  speaking  of  enemies  in  war,  says :  ' '  But  that  we  may 
not  kill  or  hurt  them  in  a  neutral  country,  proceeds  not  from 
any  privileges  attached  to  their  persons,  but  from  the  right  of 
the  prince  in  whose  dominions  they  are." 

A  capture  in  neutral  waters  is  valid  as  between  belligerents. 
Neither  a  belligerent  owner  nor  an  individual  enemy  owner  can 


778  RIGHTS  AND  DUTIES  OF  NEUTRALS. 

be  heard  to  complain.  But  the  neutral  sovereign  whose  territory 
has  been  violated  may  interpose  and  demand  reparation,  and  is 
entitled  to  have  the  captured  property  restored. 

The  latter  was  not  done  in  this  case  because  the  captured 
vessel  had  been  sunk  and  lost.  It  was,  therefore,  impossible. 

The  libellant  was  not  entitled  to  a  decree  in  his  favor,  for 
several  reasons. 

The  title  to  captured  property  always  vests  primarily  in  the 
government  of  the  captors.  The  rights  of  individuals,  where 
such  rights  exist,  are  the  results  of  local  law  or  regulations. 
Here,  the  capture  was  promptly  disavowed  by  the  United  States. 
They,  therefore,  never  had  any  title. 

The  case  is  one  in  which  the  judicial  is  bound  to  follow  the 
action  of  the  political  department  of  the  government,  and  is 
concluded  by  it.  Phillips  v.  Payne,  92  U.  S.  130. 

These  things  must  necessarily  be  so,  otherwise  the  anomaly 
would  be  possible,  that,  while  the  government  was  apologizing 
and  making  reparation  to  avoid  a  foreign  war,  the  offending 
officer  might,  through  the  action  of  its  courts,  fill  his  pockets 
with  the  fruits  of  the  offence  out  of  which  the  controversy  arose. 
When  the  capture  was  disavowed  by  our  government,  it  became 
for  all  the  purposes  of  this  case  as  if  it  had  not  occurred. 

Lastly,  the  maxim,  "ex  turpi  causa  non  oritur  actio,"  applies 
with  full  force.  No  court  will  lend  its  aid  to  a  party  who  founds 
his  claim  for  redress  upon  an  illegal  act. 

The  Brazilian  Government  was  justified  by  the  law  of  nations 
in  demanding  the  return  of  the  captured  vessel  and  proper  re- 
dress  otherwise.  It  was  due  to  its  own  character,  and  to  the 
neutral  position  it  had  assumed  between  the  belligerents  in  the 
war  then  in  progress,  to  take  prompt  and  vigorous  measures  in 
the  case,  as  was  done.  The  commander  was  condemned  by  the 
law  of  nations,  public  policy,  and  the  ethics  involved  in  his 
conduct.  Decree  affirmed. 


THE  APPAM.  779 

/ 

THE  STEAMSHIP  APPAM. 

SUPREME  COURT  OF  THE  UNITED  STATES.     1917. 
243  U.  S.  124. 

Appeals  from  the  District  Court  of  the  United  States  for  the 
Eastern  District  of  Virginia.  .  .  . 

[On  January  15,  1916  the  British  passenger  steamer  Appam, 
en  route  from  West  Africa  to  Liverpool,  was  captured  on  the 
high  seas  by  the  German  cruiser  Moewe  in  latitude  33.19  N., 
longitude  14.24  W.  The  point  of  capture  was  about  1590  miles 
from  Emden,  the  nearest  German  port;  130  miles  from  Pun- 
chello  in  the  Madeiras,  the  nearest  available  port;  1450  miles 
from  Liverpool,  and  3051  miles  from  Hampton  Roads,  Virginia. 
After  remaining  in  the  vicinity  of  the  Moewe  for  two  days,  the 
vessel  was  placed  under  the4  command  of  a  German  officer  who 
was  ordered  "to  bring  this  ship  into  the  nearest  American  har- 
bor and  there  to  lay  up,"  a  German  prize  crew  was  placed  on 
board,  dynamite  bombs  were  distributed  about  the  ship  which 
the  German  commander  was  instructed  to  explode  in  case  of 
"any  trouble,  mutiny  or  attempt  to  take  the  ship,"  and  the  crew 
of  the  Appam  was  compelled  to  navigate  it  to  Hampton  Roads 
where  it  arrived  January  31,  1916.  Application  was  at  once 
made  to  the  Secretary  of  State  for  the  internment  of  both  vessel 
and  crew.  This  was  denied,  and  the  members  of  the  crew  were 
released  with  their  personal  effects.  The  owner  and  master  of 
the  vessel  then  filed  their  libels  in  admiralty  for  the  purpose  of 
obtaining  possession  of  the  vessel  and  cargo.  The  District  Court 
having  decided  in  their  favor,  234  Fed.  389,  these  appeals  were 
taken  by  the  German  officer  in  charge  of  the  vessel  and  by  the 
German  vice-consul  at  Newport  News,  Virginia.] 

MR.  JUSTICE  DAY  delivered  the  opinion  of  the  court.  .  .  . 
From  the  facts  which  we  have  stated,  we  think  the  decisive  ques- 
tions resolve  themselves  into  three:  First,  was  the  use  of  an 
American  port,  under  the  circumstances  shown,  a  breach  of  this 
Nation's  neutrality  under  the  principles  of  international  law? 
Second,  was  such  use  of  an  American  port  justified  by  the  ex- 
isting treaties  between  the  German  Government  and  our  own? 
Third,  was  there  jurisdiction  and  right  to  condemn  the  Appam 
and  her  cargo  in  a  court  of  admiralty  of  the  United  States  ? 


780  RIGHTS  AND  DUTIES  OF  NEUTRALS. 

It  is  familiar  international  law  that  the  usual  course  after 
the  capture  of  the  Appam  would  have  been  to  take  her  into  a 
German  port,  where  a  prize  court  of  that  Nation  might  have 
adjudicated  her  status,  and,  if  it  so  determined,  condemned  the 
vessel  as  a  prize  of  war.  Instead  of  that,  the  vessel  was  neither 
taken  to  a  German  port,  nor  to  the  nearest  port  accessible  of  a 
neutral  power,  but  was  ordered  to,  and  did,  proceed  over  a 
distance  of  more  than  three  thousand  miles,  with  a  view  to  lay- 
ing up  the  captured  ship  in  an  American  port. 

It  was  not  the  purpose  to  bring  the  vessel  here  within  the 
privileges  universally  recognized  in  international  law,  i.  e.,  for 
necessary  fuel  or  provisions,  or  because  of  stress  of  weather  or 
necessity  of  repairs,  and  to  leave  as  soon  as  the  cause  of  such 
entry  was  satisfied  or  removed.  The  purpose  for  which  the  Ap- 
pam was  brought  to  Hampton  Roads,  and  the  character  of  the 
ship,  are  emphasized  in  the  order  which  we  have  quoted  to  take 
her  to  an  American  port  and  there  lay  her  up  and  in  a  note 
from  His  Excellency,  The  German  Ambassador,  to  the  Secretary 
of  State,  in  which  the  right  was  claimed  to  keep  the  vessel  in  an 
American  port  until  further  notice,  (Diplomatic  Correspondence 
with  Belligerent  Governments  Relating  to  Neutral  Rights  and 
Duties,  Department  of  State,  European  War  No.  3,  p.  331,)  and 
a  further  communication  from  the  German  Ambassador  for- 
warding a  memorandum  of  a  telegram  from  the  German  Govern- 
ment concerning  the  Appam  (Idem,  p.  333),  in  which  it  was 
stated : 

"Appam  is  not  an  auxiliary  cruiser  but  a  prize.  Therefore 
she  must  be  dealt  with  according  to  Article  19  of  Prusso- Amer- 
ican treaty  of  1799.  Article  21  of  Hague  Convention  concerning 
neutrality  at  sea  is  not  applicable,  as  this  convention  was  not 
ratified  by  England  and  is  therefore  not  binding  in  present  war 
according  to  Article  28.  The  above-mentioned  Article  19  au- 
thorizes a  prize  ship  to  remain  in  American  ports  as  long  as  she 
pleases.  Neither  the  ship  nor  the  prize  crew  can  therefore  be 
interned  nor  can  there  be  question  of  turning  the  prize  over  to 
English." 

In  view  of  these  facts,  and  this  attitude  of  the  Imperial  Gov- 
ernment of  Germany,  it  is  manifest  that  the  Appam  was  not 
brought  here  in  any  other  character  than  as  a  prize,  captured  at 
sea  by  a  cruiser  of  the  German  navy,  and  that  the  right  to  keep 
her  here,  as  shown  in  the  attitude  of  the  German  Government 
and  in  the  answer  to  the  libel,  was  rested  principally  upon  the 
Prussian-American  Treaty  of  1799. 


THE  APPAM.  781 

The  principles  of  international  law  recognized  by  this  Gov- 
ernment, leaving  the  treaty  aside,  will  not  permit  the  ports  of 
the  United  States  to  be  thus  used  by  belligerents.  If  such  use 
were  permitted,  it  would  constitute  of  the  ports  of  a  neutral 
country  harbors  of  safety  into  which  prizes,  captured  by  one  of 
the  belligerents,  might  be  safely  brought  and  indefinitely  kept. 

From  the  beginning  of  its  history  this  country  has  been  care- 
ful to  maintain  a  neutral  position  between  warring  governments, 
and  not  to  allow  the  use  of  its  ports  in  violation  of  the  obliga- 
tions of  neutrality;  nor  to  permit  such  use  beyond  the  necessi- 
ties arising  from  the  perils  of  the  seas  or  the  necessities  of  such 
vessels  as  to  sea-worthiness,  provisions  and  supplies.  Such  usage 
has  the  sanction  of  international  law,  Dana's  Note  to  Wheaton 
on  International  Law,  1866,  8th  American  Edition,  §  391,  and 
accords  with  our  own  practice.  Moore's  Digest  of  International 
Law,  vol.  7,  936,  937,  938. 

A  policy  of  neutrality  between  warring  nations  has  been  main- 
tained from  1793  to  this  time.  In  that  year  President  Washing- 
ton firmly  denied  the  use  of  our  ports  to  the  French  Minister 
for  the  fitting  out  of  privateers  to  destroy  English  commerce. 
This  attitude  led  to  the  enacment  of  the  Neutrality  Act  of  1794, 
afterwards  embodied  in  the  Act  of  1818,  enacting  a  code  of 
neutrality,  which  among  other  things  inhibited  the  fitting  out 
and  arming  of  vessels;  the  augmenting  or  increasing  of  the 
force  of  armed  vessels;  or  the  setting  on  foot  in  our  territory 
of  military  expeditions ;  and  empowering  the  President  to  order 
foreign  vessels  of  war  to  depart  from  our  ports  and  compelling 
them  so  to  do  when  required  by  the  law  of  nations.  Moore  on 
International  Arbitrations,  vol.  4,  3967  et  seq. 

This  policy  of  the  American  Government  was  emphasized  in 
its  attitude  at  the  Hague  Conference  of  1907.  Article  21  of  the 
Hague  Treaty  provides: 

' '  A  prize  may  only  be  brought  into  a  neutral  port  on  account 
of  unseaworthiness,  stress  of  weather,  or  want  of  fuel  or  pro- 
visions. 

"It  must  leave  as  soon  as  the  circumstances  which  justified 
its  entry  are  at  an  end.    If  it  does  not,  the  neutral  Power  must 
order  it  to  leave  at  once;  should  it  fail  to  obey,  the  neutral 
Power  must  employ  the  means  at  its  disposal  to  release  it  with 
its  officers  and  crew  and  to  intern  the  prize  crew." 
Article  22  provides: 
*'A  neutral  Power  must,  similarly,  release  a  prize  brought 


782  BIGHTS  AND  DUTIES  OF  NEUTRALS. 

into  one  of  its  ports  under  circumstances  other  than  those  re- 
ferred to  in  Article  21." 

To  these  articles,  adherence  was  given  by  Belgium,  France, 
Austria-Hungary,  Germany,  the  United  States,  and  a  number 
of  other  nations.  They  were  not  ratified  by  the  British  Govern- 
ment. This  Government  refused  to  adhere  to  Article  23,  which 
provides : 

"A  neutral  Power  may  allow  prizes  to  enter  its  ports  and 
roadsteads,  whether  under  convoy  or  not,  when  they  are 
brought  there  to  be  sequestrated  pending  the  decision  of  a 
Prize  Court.  It  may  have  the  prize  taken  to  another  of  its 
ports. 

"If  the  prize  is  convoyed  by  a  war-ship,  the  prize  crew  may 
go  on  board  the  convoying  ship. 

"If  the  prize  is  not  under  convoy,  the  prize  crew  are  left  at 
liberty." 

And  in  the  proclamation  of  the  convention  the  President  re- 
cited the  resolution  of  the  Senate  adhering  to  it,  subject  to  the 
"reservation  and  exclusion  of  its  Article  23  and  with  the  un- 
derstanding that  the  last  clause  of  Article  3  of  the  said  Conven- 
tion implies  the  duty  of  a  neutral  power  to  make  the  demand 
therein  mentioned  for  the  return  of  a  ship  captured  within  the 
neutral  jurisdiction  and  no  longer  within  that  jurisdiction." 
36  Stat.,  Pt.  II,  p.  2438. 

While  this  treaty  may  not  be  of  binding  obligation,  owing  to 
lack  of  ratification,  it  is  very  persuasive  as  showing  the  attitude 
of  the  American  Government  when  the  question  is  one  of  inter- 
national law;  from  which  it  appears  clearly  that  prizes  could 
only  be  brought  into  our  ports  upon  general  principles  recog- 
nized in  international  law,  on  account  of  unseaworthiness,  stress 
of  weather,  or  want  of  fuel  or  provisions,  and  we  refused  to 
recognize  the  principle  that  prizes  might  enter  our  ports  and 
roadsteads,  whether  under  convoy  or  not,  to  be  sequestrated 
pending  the  decision  of  a  prize  court.  From  the  history  of  the 
conference  it  appears  that  the  reason  for  the  attitude  of  the 
American  delegates  in  refusing  to  accept  Article  23  was  that 
thereby  a  neutral  might  be  involved  in  participation  in  the  war 
to  the  extent  of  giving  asylum  to  a  prize  which  the  belligerent 
might  not  be  able  to  conduct  to  a  home  port.  See  Scott  on 
Peace  Conferences,  1899-1907,  vol.  II,  p.  237  et  seq. 

Much  stress  is  laid  upon  the  failure  of  this  Government  to 
proclaim  that  its  ports  were  not  open  to  the  reception  of  cap- 


*     THE  APPAM.  783 

tured  prizes,  and  it  is  argued  that  having  failed  to  interdict  the 
entrance  of  prizes  into  our  ports  permission  to  thus  enter  must 
be  assumed.  But  whatever  privilege  might  arise  from  this  cir- 
cumstance it  would  not  warrant  the  attempted  use  of  one  of  our 
ports  as  a  place  in  which  to  store  prizes  indefinitely,  and  cer- 
tainly not  where  no  means  of  taking  them  out  are  shown  except 
by  the  augmentation  of  her  crew,  which  would  be  a  clear  viola- 
tion of  established  rules  of  neutrality.  .  .  . 

[The  learned  judge  then  discussed  the  provisions  of  the  treaty 
between  Prussia  and  the  United  States  and  concluded  that 
"such  use  of  one  of  our  ports  was  in  no  wise  sanctioned  by  the 
Treaty  of  1799."] 

It  remains  to  inquire  whether  there  was  jurisdiction  and  au- 
thority in  an  admiralty  court  of  the  United  States,  under  these 
circumstances,  to  order  restoration  to  an  individual  owner  of  the 
vessel  and  cargo. 

The  earliest  authority  upon  this  subject  in  the  decisions  of 
this  court  is  found  in  the  case  of  Glass  v.  The  Sloop  Betsey,  3 
Ball.  6,  decided  in  1794,  wherein  it  appeared  that  the  com- 
mander of  the  French  privateer,  The  Citizen  Genet,  captured 
as  a  prize  on  the  high  seas  the  sloop  Betsey  and  sent  the  vessel 
into  Baltimore,  where  the  owners  of  the  sloop  and  cargo  filed  a 
libel  in  the  District  Court  of  Maryland,  claiming  restitution  be- 
cause the  vessel  belonged  to  subjects  of  the  King  of  Sweden,  a 
neutral  power,  and  the  cargo  was  owned  jointly  by  Swedes  and 
Americans.  The  District  Court  denied  jurisdiction,  the  Circuit 
Court  affirmed  the  decree,  and  an  appeal  was  prosecuted  to  this 
court.  The  unanimous  opinion  was  announced  by  Mr.  Chief 
Justice  Jay,  holding  that  the  District  Courts  of  the  United 
States  possessed  the  powers  of  courts  of  admiralty,  whether  sit- 
ting as  an  instance  or  as  a  prize  court,  and  sustained  the  juris- 
diction of  the  District  Court  of  Maryland,  and  held  that  that 
court  was  competent  to  inquire  into  and  decide  whether  restitu- 
tion should  be  made  to  the  complainants  conformably  to  the 
laws  of  nations  and  the  treaties  and  laws  of  the  United  States. 

The  question  came  again  before  this  court  in  the  case  of  The 
Santisshna  Trinidad,  decided  in  1822,  reported  in  7  Wheat.  283. 
In  that  case  it  was  held  that  an  illegal  capture  would  be  invested 
with  the  character  of  a  tort,  and  that  the  original  owners  were 
entitled  to  restitution  when  the  property  was  brought  within  our 
jurisdiction.  The  opinion  was  delivered  by  Mr.  Justice  Story. 
and,  after  a  full  discussion  of  the  matter,  the  court  held  that 


784  EIGHTS  AND  DUTIES  OF  NEUTRALS. 

such  an  illegal  capture,  if  brought  into  the  jurisdiction  of  the 
courts  of  the  United  States,  was  subject  to  condemnation  and 
restitution  to  the  owners.  .  .  . 

In  the  subsequent  cases  in  this  court  this  doctrine  has  not 
been  departed  from.  L  'Invincible,  1  Wheat.  238,  258 ;  The  Es- 
trella,  4  Wheat.  298,  308-311;  La  Amistad  de  Rues,  5  Wheat. 
385,  390. 

It  is  insisted  that  these  cases  involve  illegal  captures  at  sea, 
or  violations  of  neutral  obligation,  not  arising  because  of  the 
use  of  a  port  by  sending  in  a  captured  vessel  and  keeping  her 
there  in  violation  of  our  rights  as  a  neutral.  But  we  are  at  a 
loss  to  see  any  difference  in  principle  between  such  cases  and 
breaches  of  neutrality  of  the  character  here  involved  in  under- 
taking to  make  of  an  American  port  a  depository  of  captured 
vessels  with  a  view  to  keeping  them  there  indefinitely.  Nor  can 
we  consent  to  the  insistence  of  counsel  for  appellant  that  the 
Prize  Court  of  the  German  Empire  has  exclusive  jurisdiction  to 
determine  the  fate  of  the  Appam  as  lawful  prize.  The  vessel 
was  in  an  American  port  and  under  our  practice  within  the 
jurisdiction  and  possession  of  the  District  Court  which  had  as- 
sumed to  determine  the  alleged  violation  of  neutral  rights,  with 
power  to  dispose  of  the  vessel  accordingly.  The  foreign  tribu- 
nal under  such  circumstances  could  not  oust  the  jurisdiction  of 
the  local  court  and  thereby  defeat  its  judgment.  The  Santissima 
Trinidad,  supra,  p.  355. 

Were  the  rule  otherwise  than  this  court  has  frequently  de- 
clared it  to  be,  our  ports  might  be  filled  in  case  of  a  general  war 
such  as  is  now  in  progress  between  the  European  countries,  with 
captured  prizes  of  one  or  the  other  of  the  belligerents,  in  utter 
violation  of  the  principles  of  neutral  obligation  which  have  con- 
trolled this  country  from  the  beginning. 

The  violation  of  American  neutrality  is  the  basis  of  jurisdic- 
tion, and  the  admiralty  courts  may  order  restitution  for  a 
violation  of  such  neutrality.  In  each  case  the  jurisdiction  and 
order  rests  upon  the  authority  of  the  courts  of  the  United  States 
to  make  restitution  to  private  owners  for  violations  of  neutrality 
where  offending  vessels  are  within  our  jurisdiction,  thus  vindi- 
cating our  rights  and  obligations  as  a  neutral  people. 

It  follows  that  the  decree  in  each  case  must  be 

Affirmed. 

NOTE. — The  law  of  neutrality  is  the  most  recently  developed  of  the 
great  divisions  of  international  law.  It  was  a  concept  unknown  to 


NOTE.  785 

antiquity  and  the  middle  ages.  In  every  war  it  was  assumed  that 
every  nation  would  be  a  friend  or  partisan  of  one  or  the  other  of  the 
belligerents.  The  publicists  of  the  eighteenth  century,  particularly 
Vattel,  advocated  as  a  matter  of  theory  something  like  the  modern 
law  of  neutrality.  But  it  remained  for  Washington,  actuated  chiefly 
by  the  necessities  of  the  young  American  republic,  to  give  these  the- 
ories practical  effect  by  adopting  them  as  the  policy  of  the  govern- 
ment. His  steadfast  devotion  to  the  principle  which  he  had  espoused 
and  his  refusal  to  be  diverted  by  the  clamor  of  Jefferson  and  his  fol- 
lowers in  favor  of  France  entitle  Washington  to  recognition  as  the 
father  of  the  modern  law  of  neutrality.  See  Poster,  A.  Century  of 
American  Diplomacy,  151;  Lodge,  George  Washington,  II,  ch.  iv;  Evans, 
Writings  of  Washington,  404.  On  the  law  of  neutrality  in  general 
see  Bonfils  (Fauchille),  sec.  1441;  Kleen,  Lois  et  Usages  de  la  Neu- 
tralite;  Fillet,  Les  Lois  Actuelles  de  la  Guerre,  ens.  xi,  xii;  Fenwick, 
The  Neutrality  Laws  of  the  United  States;  Moore,  Digest,  VII,  ch. 
xxviii;  Cobbett,  Cases  and  Opinions,  II,  Part  III.  For  the  application 
of  the  principles  of  neutrality  in  the  wars  of  the  last  half-century, 
see  Bernard,  The  Neutrality  of  Great  Britain  during  the  American 
Civil  War;  Benton,  International  Law  and  Diplomacy  of  the  Spanish- 
American  War;  Campbell,  Neutral  Rights  and  Obligations  in  the 
Anglo-Boer  War;  Ariga,  La  Guerre  Russo-Japonaise ;  Hershey,  Interna- 
tional Law  and  Diplomacy  of  the  Russo-Japanese  War;  Takahashi,  In- 
ternational Law  as  Applied  to  the  Russo-Japanese  War;  Lawrence, 
War  and  Neutrality  in  the  Far  East;  Phillipson,  International  Law 
and  the  Great  War;  Garner,  International  Law  and  the  World  War, 
II,  ch.  xxxvi;  Hyde,  II,  692. 

The  development  of  the  law  of  neutrality,  particularly  as  respects 
the  rights  of  neutrals,  has  been  much  hampered  by  the  fact  that  the 
judicial  determination  of  questions  involving  such  rights  has  been 
largely  in  the  hands  of  prize  courts,  which,  not  unnaturally,  have 
been  strongly  impressed  by  the  necessities  of  the  belligerents  which 
established  them.  Furthermore  no  neutral  government  can  over- 
look the  fact  that  it  may  sometime  cease  to  be  a  neutral,  and  that 
the  protests  which  it  makes  as  a  neutral  against  the  claims  of  bel- 
ligerents may  be  cited  against  it  when  it  in  turn  becomes  a  belliger- 
ent. And  in  every  country  the  powerful  influence  of  the  army  and 
navy  is  unavoidably  directed  to  the  preservation  of  the  rights  of  the 
government  as  a  belligerent  rather  than  as  a  neutral.  As  a  result 
of  all  these  forces,  the  rules  governing  the  rights  of  neutrals  have 
been  formulated  either  by  the  prize  courts  of  belligerents  or  by  neu- 
tral governments  which  sought  to  compromise  between  their  actual 
status  as  neutrals  and  their  potential  status  as  belligerents.  In  con- 
sequence the  law  governing  neutral  rights  is  crude  and  indefinite,  and 
It  would  seem  possible  for  it  to  attain  a  satisfactory  condition  only 
by  development  with  reference  to  some  consistent  principle. 

The  inviolability  of  neutral  territory  has  long  been  recognized  as 
a  principle  of  law,  although  in  practice  the  principle  has  often  been 
violated.  As  early  as  1528,  when  a  French  and  a  Flemish  ship  en- 
gaged in  battle  at  the  mouth  of  the  Thames  and  continued  to  fight 


786  BIGHTS  AND  DUTIES  OF  NEUTRALS. 

up  the  river  to  London  where  the  French  boarded  the  enemy,  they 
were  seized  by  the  Lieutenant  of  the  Tower  and  brought  before  the 
Council,  Marsden,  Select  Pleas  in  the  Court  of  Admiralty,  II,  Ixxxii, 
note.  , 

In  the  reign  of  Queen  Mary  (1553-1558),  England  and  Scotland  be- 
ing at  war,  a  Scottish  vessel  attacked  and  captured  an  English  vessel 
in  a  Danish  harbor  and  sold  it.  The  buyer  took  it  to  an  English 
port  where  its  original  owner  caused  it  to  be  arrested  by  a  process 
from  the  Court  of  Admiralty.  The  case  having  come  before  the  Lords 
of  the  Council,  they  asked  Dr.  Lewes,  Judge  of  the  Admiralty,  and 
his  fellow  civilians  for  a  report  on  the  law.  They  replied  (Marsden, 
Law  ana  Custom  of  the  Sea,  I,  179): 

We  havinge  weyd  this  case,  with  the  circumstances  thereof, 
as  behoved  us,  thinke  that  hit  standeth  with  no  lawe  or  reason 
that  Smythe,  havinge  orderly  come  by  the  possession  of  his 
owne  shippe,  should  be  dryven  to  restore  the  same  to  Ramsey, 
the  Scotishman  that  solliciteth  this  cause  and  claymeth  to 
have  boughte  the  same  of  the  first  takers.  For  all  thoughe 
he  were  not  the  first  spoyler,  yet  his  title,  beying  dereyved 
from  the  same  fyrste  taker,  is  no  better  then  theirs.  And  to 
them  was  the  said  shippe  no  good  prise,  for  whate  so  ever  the 
enemy  dothe  take  from  thenemye  in  the  harborowe  of  a 
frende,  that  is  no  prise;  for  the  proprietie  therof  is  not  al- 
tered, but  remayneth  still  in  lawe  with  the  first  owners. 

In  1559,  Dr.  Lewes  again  wrote  that  it  is  unlawful  "that  in  time 
of  warre  one  enemy  shall  annoy  the  other  within  the  territory  or 
jurisdiction  of  any  prince  that  is  friendlie  to  both."  Marsden,  Ib.  I, 
180.  The  Scottish  captures  of  English  vessels  in  Danish  harbors  con- 
tinued, and  in  1562  the  Judge  of  the  Admiralty  said,  "The  territory 
of  an  indifferent  and  meane  prince  is  saufe  conduct  in  lawe,"  Ib.  I, 
173.  The  principle  was  well  debated  before  the  Court  of  Session  of 
Scotland  in  Robert  Hunter  v.  The  Baron  Count  de  Bothmer  (1764), 
Morison,  Decisions,  11957. 

If  a  capture  is  made  in  neutral  waters,  the  "claim  of  territory"  may 
be  set  up  only  by  the  neutral  sovereign,  The  De  Fortuyn  (1760), 
Burrell,  175;  The  Purissima  Conception  (1805),  6  C.  Robinson,  45; 
The  Diligentia  (1814),  1  Dodson,  404,  412;  The  Lilla  (1862),  2  Sprague, 
177;  The  Adela  (1867),  6  Wallace,  266;  The  Bangor  (1916),  L.  R. 
[1916]  P.  181.  •  This  rule  is  based  partly  on  the  fact  that  an  enemy 
could  not  appear  as  a  claimant  and  partly  on  the  fact  that  the  vio- 
lation of  a  country's  neutrality  was  regarded  as  an  offense  against 
the  country  where  the  capture  was  made  rather  than  against  the 
owner  whose  property  was  taken.  If,  however,  the  owner  is  a  neu- 
tral or  a  citizen  of  the  state  of  the  captor,  the  first  of  these  reasons 
disappears.  Hence  in  The  Sir  William  Peel  (1867),  5  Wallace,  517, 
the  court  allowed  a  neutral  claimant  to  set  up  the  invalidity  of  a 
capture  made  in  neutral  waters,  and  decreed  the  restitution  of  the 
vessel,  but  refused  to  allow  damages  for  its  detention  because  of 
suspicious  circumstances  affecting  the  question  of  its  neutral  char- 


NOTE.  787 

acter.  This  was  one  of  the  cases  submitted  to  the  British-American 
Claims  Commission  established  by  the  Treaty  of  Washington,  and 
that  Commission,  not  being  bound  by  the  rules  of  the  prize  courts, 
allowed  damages  on  the  ground  that  the  whole  transaction  was  in- 
valid because  the  capture  was  made  in  neutral  waters.  See  Moore, 
Int.  Arb.  IV,  3935.  For  an  instance  of  seizure  in  a  foreign  jurisdic- 
tion because  of  violation  of  municipal  neutrality  laws,  see  The  Itata 
(1892),  Moore,  Int.  Arb.  Ill,  3067. 

A  capture  made  in  the  territorial  waters  of  a  neutral  state  is  valid 
as  between  the  captors  and  the  enemy  owner,  and  may  be  ques- 
tioned only  by  the  neutral  state,  The  Adela  (1867),  6  Wallace,  266; 
The  Bangor  (1916),  L.  R.  [1916]  P.  181.  If  the  infringement  of  neu- 
tral territory  is  the  result  of  a  bona  fide  mistake,  the  neutral  sov- 
ereign may  claim  the  restitution  of  the  vessel,  but  not  damages, 
The  Twee  Gebroeders  (1800),  3  C.  Robinson,  162;  The  Vrow  Anna 
Catherina  (1803),  6  C.  Robinson,  15.  If  the  vessel  is  lost  through  bad 
weather  while  being  taken  to  a  port  of  the  captor,  the  territorial 
sovereign  may  not  claim  its  value  in  money,  since  the  principle  of 
redress  is  restitutio  in  integum,  not  reparation,  The  Valeria  (1920), 
L.  R.  [1921]  1  A.  C.  477.  If  the  ship  so  captured  has  been  requisi- 
tioned by  the  captor,  the  neutral  government  is  not  entitled  to  any- 
thing for  its  use,  The  Diisseldorf  (1920),  L.  R.  [1920]  A.  C.  1034. 
Vessels  so  requisitioned  do  not  thereby  become  the  property  of  the 
captor,  since  an  order  for  requisition  is  not  a  judgment  in  rem.  It 
confers  merely  a  right  to  use,  and  for  all  purposes  of  prize  jurisdic- 
tion such  vessels  are  represented  by  their  appraised  value.  Hence  if 
they  are  lost  after  requisition,  the  sovereign  making  a  claim  of  ter- 
ritory is  entitled  to  their  value,  The  Pellworm  (1922),  L.  R.  [1922] 
1  A.  C.  292. 

It  is  well  settled  that  a  captor  who  takes  his  prize  into  a  neutral 
port  subjects  it  to  the  neutral  jurisdiction,  which  may  restore  it  to 
the  original  owner  if  there  has  been  any  infraction  of  neutrality  on 
the  part  of  the  captor.  See  L'lnvincible  (1816),  1  Wheaton,  238;  The 
Estrella  (1819),  4  Wheat,  298;  The  Gran  Para  (1822),  7  Ib.  471; 
The  Queen  v.  The  Chesapeake  and  Cargo  (Nqva  Scotia,  1864),  1  Old- 
right,  797.  For  other  examples  of  the  use  of  neutral  territory  by 
belligerents  see  "Neutral  Port  as  Refuge  to  Escape  Capture,"  Int.  Law 
Sit.  1904,  79;  "The  Twenty-four  Hour  Rule,"  Ib.  1908,  37;  "Sequestra- 
tion of  Prize,"  Ib.  53;  "Asylum  in  Neutral  Port,"  Ib.  1911,  9.  On  the 
use  of  neutral  territory  as  an  asylum  see  Oppenheim,  II,  409-425; 
Moore,  Digest,  VII,  982.  On  the  attempt  of  the  French  minister,  Genet, 
to  set  up  prize  courts  in  the  United  States  see  Glass  v.  The  Sloop 
Betsey  (1794),  3  Dallas,  6. 

The  decision  in  the  case  of  The  Appam  gave  rise  to  much  discussion. 
See  notes  in  Harvard  Law  Review,  XXX,  161;  Columbia  Law  Review, 
XVII,  585;  Michigan  Law  Review,  XV,  487;  Allin,  "The  Case  of  the 
Appam,"  Minnesota  Law  Review,  I,  1;  Coudert,  "The  Appam  Case," 
Am.  Jour.  Int.  Law,  XI,  302;  Dr.  Arthur  Burchard,  "The  Case  of  the 


788  BIGHTS  AND  DUTIES  OF  NEUTRALS. 

Appam  and  the  Law  of  Nations,"   Ib.  XI,  270    (a  discussion  from   a 
German  standpoint) ;   Hyde,  II,  734. 

In  discussing  the  duty  of  a  captor  to  take  his  prize  into  a  con- 
venient port  for  adjudication,  Lord  Parker  of  Waddington  in  The 
Sudmark  (no.  2)  [1918]  A.  C.  475,  480,  said: 

The  convenience  of  the  port  to  which  a  prize  is  brought  in 
for  adjudication  must  be  determined  by  all  the  circumstances 
of  the  case.  Neutral  ports  are  not  convenient  ports,  for  it  is 
arguable  that  a  neutral  Power  could  not  allow  a  prize  to  re- 
main in  its  ports  (except  temporarily,  and  then  only  by  reason 
of  special  circumstances  such  as  stress  of  weather  or  want 
of  provisions)  without  committing  a  breach  of  neutrality, 
and,  further,  it  might  be  difficult  to  execute  the  order  of  the 
Prize  Court  of  the  captors  over  vessels  in  a  neutral  port. 

Lord  Parker's  concluding  observation  was  well  illustrated  in  the 
case  of  the  Appam,  which  was  condemned  by  the  German  Prize  Court 
at  Hamburgh  on  May  11,  1916  while  its  release  was  ordered  by  the 
neutral  court  on  July  29,  1916.  The  German  court  states  that  "enemy 
vessels  are  subject  to  capture  according  to  P.  0.  [Prize  Ordinance] 
10  and  to  confiscation  according  to  P.  O.  17,"  and  as  it  does  not  com- 
ment upon  the  fact  that  the  vessel  was  then  lying  in  neutral  waters, 
it  apparently  attached  no  importance  to  that  circumstance.  The 
decision  is  printed  in  Am.  Jour.  Int.  Law,  XI,  872. 


SECTION  2.    THE  PREVENTION  OF  UNNEUTRAL  ACTS  IN  NEUTRAL 

TERRITORY. 

THE   SANTISSIMA   TRINIDAD   AND   THE   ST.   ANDRE. 

SUPREME  COUBT  OF  THE  UNITED  STATES.    1822. 
7  Wheaton,  283. 

Appeal  from  the  Circuit  Court  of  Virginia.  This  was  a  libel 
filed  by  the  consul  of  Spain,  in  the  district  court  of  Virginia,  in 
April,  1817,  against  eighty-nine  bales  of  cochineal,  two  bales  of 
jalap,  and  one  box  of  vanilla,  originally  constituting  part  of  the 
cargoes  of  the  Spanish  ships,  Santissima  Trinidad  and  St. 
Andre,  and  alleged  to  be  unlawfully  and  piratically  taken  out  of 
those  vessels,  on  the  high  seas,  by  a  squadron  consisting  of  two 
armed  vessels,  called  the  Independencia  del  Sud,  and  the  Altra- 
vida,  and  manned  and  commanded  by  persons  assuming  them- 
selves to  be  citizens  of  the  United  Provinces  of  the  Rio  de  la 
Plata.  The  libel  was  filed,  in  behalf  of  the  original  Spanish 


THE  SANTISSIMA  TRINIDAD.  789 

owners,  by  Don  Pablo  Chagon,  consul  of  his  Catholic  Majesty 
for  the  port  of  Norfolk;  and  as  amended,  it  insisted  upon  resti- 
tution, principally  for  three  reasons:  1.  That  the  commanders 
of  the  capturing  vessels,  the  Independencia  and  the  Altravida, 
were  native  citizens  of  the  United  States,  and  were  prohibited 
by  our  treaty  with  Spain  of  1795,  from  taking  commissions  to 
cruise  against  that  power.  2.  That  the  said  capturing  vessels 
were  owned  in  the  United  States,  and  were  originally  equipped, 
fitted  out,  armed  and  manned  in  the  United  States,  contrary  to 
law.  3.  That  their  force  and  armament  had  been  illegally 
augmented  within  the  United  States.  .  .  .  [Further  facts 
appear  in  the  opinion.] 

The  district  court,  upon  the  hearing  of  the  cause,  decreed 
restitution  to  the  original  Spanish  owners.  That  sentence  was 
affirmed  in  the  circuit  court,  and  from  the  decree  of  the  latter 
the  cause  was  brought  by  appeal  to  this  court. 

STORY,  Justice,  delivered  the  opinion  of  the  court. — 
Upon  the  argument  at  the  bar  several  questions  have  arisen, 
which  have  been  deliberately  considered  by  the  court;  and  its 
judgment  will  now  be  pronounced.  The  first  in  the  order  in 
which  we  think  it  most  convenient  to  consider  the  cause,  is, 
whether  the  Independencia  is,  in  point  of  fact,  a  public  ship,  be- 
longing to  the  government  of  Buenos  Ayres.  The  history  of 
this  vessel,  so  far  as  is  necessary  for  the  disposal  of  this  point, 
is  briefly  this :  She  was  originally  built  and  equipped  at  Balti- 
more, as  a  privateer,  during  the  late  war  with  Great  Britain,  and 
was  then  rigged  as  a  schooner,  and  called  the  Mammoth,  and 
cruised  against  the  enemy.  After  the  peace,  she  was  rigged  as  a 
brig,  and  sold  by  her  original  owners.  In  January,  1816,  she 
was  loaded  with  a  cargo  of  munitions  of  war,  by  her  new  owners 
(who  are  inhabitants  of  Baltimore),  and  being  armed  with 
twelve  guns,  constituting  a  part  of  her  original  armament,  she 
was  despatched  from  that  port,  under  the  command  of  the  claim- 
ant, on  a  voyage,  ostensibly  to  the  north-west  coast,  but  in  reality 
to  Buenos  Ayres.  By  the  written  instructions  given  to  the  super- 
cargo on  this  voyage,  he  was  authorized  to  sell  the  vessel  to  the 
government  of  Buenos  Ayres,  if  he  could  obtain  a  suitable  price. 
She  duly  arrived  at  Buenos  Ayres,  having  exercised  no  act  of 
hostility,  but  sailed  under  the  protection  of  the  American  flag, 
during  the  voyage.  At  Buenos  Ayres,  the  vessel  was  sold  to 
Captain  Chaytor  and  two  other  persons;  and  soon  afterwards, 


790  RIGHTS  AND  DUTIES  OF  NEUTRALS. 

she  assumed  the  flag  and  character  of  a  public  ship,  and  was 
understood  by  the  crew  to  have  been  sold  to  the  government  of 
Buenos  Ayres :  and  Captain  Chaytor  made  known  these  facts  to 
the  crew,  and  asserted  that  he  had  become  a  citizen  of  Buenos 
Ayres ;  and  had  received  a  commission  to  command  the  vessel, 
as  a  national  ship ;  and  invited  the  crew  to  enlist  in  the  service ; 
and  the  greater  part  of  them  accordingly  enlisted.  From  this 
period,  which  was  in  May  1816,  the  public  functionaries  of  our 
own  and  other  foreign  governments  at  that  port,  considered  the 
vessel  as  a  public  ship  of  war,  and  such  was  her  avowed  charac- 
ter and  reputation.  .  .  . 

The  next  question  growing  out  of  this  record,  is,  whether  the 
property  in  controversy  was  captured,  in  violation  of  our  neu- 
trality, so  that  restitution  ought,  by  the  law  of  nations,  to  be 
decreed  to  the  libellants.  Two  grounds  are  relied  upon  to  justify 
restitution:  First,  that  the  Independencia  and  Altravida  were 
originally  equipped,  armed,  and  manned  as  vessels  of  war,  in 
our  ports;  secondly,  that  there  was  an  illegal  augmentation  of 
the  force  of  the  Independencia,  within  our  ports.  Are  these 
grounds,  or  either  of  them,  sustained  by  the  evidence?  .  .  . 

The  question  as  to  the  original  illegal  armament  and  outfit  of 
the  Independenoia  may  be  dismissed  in  a  few  words.  It  is  ap- 
parent, that  though  equipped  as  a  vessel  of  war,  she  was  sent 
to  Buenos  Ayres  on  a  commercial  adventure,  contraband,  in- 
deed, but  in  no  shape  violating  our  laws  or  our  national  neu- 
trality. If  captured  by  a  Spanish  ship  of  war,  during  the  voy- 
age, she  would  have  been  justly  condemnable  as  good  prize,  for 
being  engaged  in  a  traffic  prohibited  by  the  law  of  nations.  But 
there  is  nothing  in  our  laws,  or  in  the  law  of  nations,  that  forbids 
our  citizens  from  sending  armed  vessels,  as  well  as  munitions 
of  war,  to  foreign  ports  for  sale.  It  is  a  commercial  adventure, 
which  no  nation  is  bound  to  prohibit;  and  which  only  exposes 
the  persons  engaged  in  it  to  the  penalty  of  confiscation.  Sup- 
posing, therefore,  the  voyage  to  have  been  for  commercial  pur- 
poses, and  the  sale  at  Buenos  Ayres  to  have  been  a  bona  fide  sale 
(and  there  is  nothing  in  the  evidence  before  us  to  contradict  it), 
there  is  no  pretence  to  say.  that  the  original  outfit  on  the  voyage 
was  illegal,  or  that  a  capture  made  after  the  sale  was,  for  that 
cause  alone,  invalid. 

The  more  material  consideration  is,  as  to  the  augmentation  of 
her  force,  in  the  United  States,  at  a  subsequent  period.  .  .  . 
[It  appeared  in  evidence  that  after  cruising  against  Spain,  the 


THE  SANTISSIMA  TRINIDAD.  791 

Independencia  put  into  Baltimore  for  repairs.  Whether  she 
increased  her  armament  in  the  course  of  the  repairs  seemed 
doubtful,  but  it  was  admitted  that  while  at  Baltimore  she  en- 
listed about  thirty  persons  in  her  crew.]  The  court  is,  there- 
fore, driven  to  the  conclusion,  that  there  was  an  illegal  aug- 
mentation of  the  force  of  the  Independencia,  in  our  ports,  by  a 
substantial  increase  of  her  crew;  and  this  renders  it  wholly  un- 
necessary to  enter  into  an  investigation  of  the  question,  whether 
there  was  not  also  an  illegal  increase  of  her  armament.  .  .  . 

And  here  we  are  met  by  an  argument  on  behalf  of  the  claim- 
ant, that  the  augmentation  of  the  force  of  the  Independencia, 
within  our  ports,  is  not  an  infraction  of  the  law  of  nations,  or  a 
violation  of  our  neutrality;  and  that  so  far  as  it  stands  pro- 
hibited by  our  municipal  laws,  the  penalties  are  personal,  and 
do  not  reach  the  case  of  restitution  of  captures  made  in  the 
cruise,  during  which  such  augmentation  has  taken  place.  It  has 
never  been  held  by  this  court,  that  an  augmentation  of  force  or 
illegal  outfit  affected  any  captures  made  after  the  original  cruise 
was  terminated.  By  analogy  to  other  cases  of  violations  of  pub- 
lic law,  the  offence  may  well  be  deemed  to  be  deposited  at  the 
termination  of  the  voyage,  and  not  to  affect  future  transactions. 
But  as  to  captures  made  during  the  same  cruise,  the  doctrine  of 
this  court  has  long  established,  that  such  illegal  augmentation 
is  a  violation  of  the  law  of  nations,  as  well  as  of  our  own  munic- 
ipal laws,  and  as  a  violation  of  our  neutrality,  by  analogy  to 
other  cases,  it  infects  the  captures  subsequently  made  with  the 
character  of  torts,  and  justifies  and  requires  a  restitution  to  the 
parties  who  have  been  injured  by  such  misconduct.  It  does  not 
lie  in  the  mouth  of  wrongdoers,  to  set  up  a  title  derived  from  a 
violation  of  our  neutrality.  The  cases  in  which  this  doctrine 
has  been  recognized  and  applied,  have  been  cited  at  the  bar,  and 
are  so  numerous  and  so  uniform,  that  it  would  be  a  waste  of 
time  to  discuss  them,  or  to  examine  the  reasoning  by  which 
they  are  supported:  more  especially  as  no  inclination  exists  on 
the  part  of  the  court  to  question  the  soundness  of  these  de- 
cisions. If,  indeed,  the  question  were  entirely  new,  it  would 
deserve  very  grave  consideration,  whether  a  claim  founded  on  a 
violation  of  our  neutral  jurisdiction,  could  be  asserted  by  private 
persons,  or  in  any  other  manner  than  a  direct  intervention  of  the 
government  itself.  In  the  case  of  a  capture  made  within  a  neu- 
tral territorial  jurisdiction,  it  is  well  settled,  that  as  between  the 
captors  and  the  captured,  the  question  can  never  be  litigated. 


792  EIGHTS  AND  DUTIES  OF  NEUTRALS. 

It  can  arise  only  upon  a  claim  of  the  neutral  sovereign,  asserted 
in  his  own  courts,  or  the  courts  of  the  power  having  cognisance 
of  the  capture  itself  for  the  purposes  of  prize.  And  by  analogy 
to  this  course  of  proceeding,  the  interposition  of  our  own  govern- 
ment might  seem  fit  to  have  been  required,  before  cognisance  of 
the  wrong  could  be  taken  by  our  courts.  But  the  practice  from 
the  beginning,  in  this  class  of  causes,  a  period  of  nearly  thirty 
years,  has  been  uniformly  the  other  way ;  and  it  is  now  too  late  to 
disturb  it.  If  any  inconvenience  should  grow  out  of  it,  from 
reasons  of  state  policy  or  executive  discretion,  it  is  competent 
for  congress  to  apply  at  its  pleasure  the  proper  remedy.  .  .  . 
An  objection  .  .  .  has  been  urged  at  the  bar  .  .  . 
that  public  ships  of  war  are  exempted  from  the  local  jurisdiction, 
by  the  universal  assent  of  nations ;  and  that  as  all  property  cap- 
tured by  such  ships,  is  captured  for  the  sovereign,  it  is,  by 
parity  of  reasoning,  entitled  to  the  like  exemption ;  for  no  sover- 
eign is  answerable  for  his  acts  to  the  tribunals  of  any  foreign 
sovereign.  .  .  .  But  there  is  nothing  in  the  law  of  nations 
which  forbids  a  foreign  sovereign,  either  on  account  of  the  dig- 
nity of  his  station,  or  the  nature  of  his  prerogative,  from  volun- 
tarily becoming  a  party  to  a  suit,  in  the  tribunals  of  another 
country,  or  from  asserting  there,  any  personal,  or  proprietary,  or 
sovereign  rights,  which  may  be  properly  recognised  and  enforced 
by  such  tribunals.  It  is  a  mere  matter  of  his  own  good  will  and 
pleasure;  and  if  he  happens  to  hold  a  private  domain,  within 
another  territory,  it  may  be,  that  he  cannot  obtain  full  redress 
for  any  injury  to  it,  except  through  the  instrumentality  of  its 
courts  of  justice.  It  may,  therefore,  be  justly  laid  down,  as  a 
general  proposition,  that  all  persons  and  property  within  the 
territorial  jurisdiction  of  a  sovereign,  are  amenable  to  the  juris- 
diction of  himself  or  his  courts :  and  that  the  exceptions  to  this 
rule  are  such  only  as,  by  common  usage  and  public  policy,  have 
been  allowed,  in  order  to  preserve  the  peace  and  harmony  of 
nations,  and  to  regulate  their  intercourse  in  a  manner  best  suited 
to  their  dignity  and  rights.  .  .  .  We  are  of  opinion,  that  the 
objection  cannot  be  sustained;  and  that  whatever  may  be  the 
exemption  of  the  public  ship  herself,  and  of  her  armament  and 
munitions  of  war,  the  prize  property  which  she  brings  into  our 
ports  is  liable  to  the  jurisdiction  of  our  courts,  for  the  purpose 
of  examination  and  inquiry,  and  if  a  proper  case  be  made  out, 
for  restitution  to  those  whose  possession  has  been  divested  by  a 
violation  of  our  neutrality.  .  .  . 


SETON,  MAITLAND  &  CO.  v.  LOW.  793 

Upon  the  whole,  it  is  the  opinion  of  the  court,  that  the  decree 
of  the  circuit  court  should  be  affirmed,  with  costs. 


SETON,  MAITLAND  &  CO.  v.  LOW. 

SUPREME  COURT  OF  JUDICATURE  OF  NEW  YORK.    1799. 
1  Johnson,  1. 

This  was  an  action  on  an  open  policy  of  insurance,  dated  the 
3d  of  May,  1797,  upon  "all  kinds  of  lawful  goods  and  mer- 
chandises" on  board  the  brig  Hannah,  from  New  York  to  the 
Havana.  ...  No  disclosure  was  made  to  the  company,  at  the 
time  of  obtaining  the  insurance,  of  the  nature  of  the  cargo. 
.  .  .  The  Hannah  was  captured,  and  carried  into  New  Provi- 
dence, where  the  cargo  was  libelled,  [and  part  of  it  condemned 
as  contraband.]  The  plaintiffs,  on  receiving  intelligence  of  the 
capture*  and  proceedings  above  mentioned  .  .  .  abandoned 
to  the  company,  the  cargo,  and  delivered  to  them  the  usual 
proofs  of  interest  and  loss.  .  .  . 

KENT,  J.  Two  questions  were  raised,  on  the  argument  in  this 
case. 

1.  Whether  the  contraband  goods  were  lawful,  within  the 
meaning  of  the  policy. 

2.  If  lawful,  whether  the  assured  were  bound  to  disclose  to 
the  defendant  the  fact,  that  part  of  the  cargo  was  contraband 
of  war. 

On  the  first  point,  I  am  of  opinion,  that  the  contraband  goods 
were  lawful  goods,  and  that  whatever  is  not  prohibited  to  be 
exported,  by  the  positive  law  of  the  country,  is  lawful.  It  may 
be  said,  that  the  law  of  nations  is  part  of  the  municipal  law  of 
the  land,  and  that  by  that  law,  (and  which,  so  far  as  it  concerns 
the  present  question,  is  expressly  incorporated  into  our  treaty  of 
commerce  with  Great  Britain)  contraband  trade  is  prohibited 
to  neutrals,  and,  consequently,  unlawful.  This  reasoning  is  not 
destitute  of  force,  but  the  fact  is,  that  the  law  of  nations  does 
not  declare  the  trade  to  be  unlawful.  It  only  authorizes  the 
seizure  of  the  contraband  articles  by  the  belligerent  powers ;  and 
this  it  does  from  necessity.  A  neutral  nation  has  nothing  to  do 
with  the  war,  and  is  under  no  moral  obligation  to  abandon  or 


794          RIGHTS  AND  DUTIES  OF  NEUTRALS. 

abridge  its  trade;  and  yet,  at  the  same  time,  from  the  law  of 
necessity,  as  Vattel  observes,  the  powers  at  war  have  a  right  to 
seize  and  confiscate  the  contraband  goods,  and  this  they  may  do 
from  the  principle  of  self-defence.  The  right  of  the  hostile 
power  to  seize,  this  same  very  moral  and  correct  writer  con- 
tinues to  observe,  does  not  destroy  the  right  of  the  neutral  to 
transport.  They  are  rights  which  may,  at  times,  reciprocally 
clash  and  injure  each  other.  But  this  collision  is  the  effect  of 
inevitable  necessity,  and  the  neutral  has  no  just  cause  to  com- 
plain. A  trade  by  a  neutral  in  articles  contraband  of  war,  is, 
therefore,  a  lawful  trade,  though  a  trade,  from  necessity,  subject 
to  inconvenience  and  loss. 

With  respect  to  the  second  question,  the  reason  of  the  rule 
requiring  due  disclosure  of  all  facts,  within  the  knowledge  of 
either  party,  is  to  prevent  fraud,  and  encourage  good  faith. 
.  .  .  There  are,  however,  certain  circumstances,  appertaining 
to  every  contract,  which  each  party  is  presumed  to  know,  and 
need  not  be  told.  .  .  .  If  an  underwriter  insures  a  private 
ship  of  war,  he  need  not  be  told  of  secret  expeditions,  &c.  for  he 
is  bound  to  know,  that  such  are  the  presumed  destinations  of 
such  vessels.  All  matters  of  general  notoriety  and  speculation, 
every  party  is  bound  to  know,  at  his  own  peril.  .  .  .  The 
underwriter  is  presumed  to  know  that  the  neutral  trade  under- 
goes no  abridgement,  or  abandonment,  in  war;  that  it  is  likely 
to  consist  of  the  same  kind  of  articles  in  war  as  in  peace,  and, 
consequently,  that  the  nature  of  the  cargo  need  not  be  dis- 
closed. .  .  . 

My  opinion,  accordingly  is,  that  judgment  be  rendered  for  the 
plaintiffs  as  for  a  total  loss.  .  .  . 

[LANSING,  C.  J.,  and  LEWIS,  J.,  delivered  concurring  opinions. 
BENSON,  J.,  dissented.] 


KENNETT  ET  AL.  v.  CHAMBERS. 

SUPREME  COURT  OF  THE  UNITED  STATES.     1852. 
14  Howard,  38. 

This  was  an  appeal  from  the  District  Court  of  the  United 
States  for  the  District  of  Texas.    .    .    . 

[This  was  a  bill  for  the  specific  performance  of  a  contract 


KENNETT  v.  CHAMBERS.  795 

which  the  appellants  or  their  predecessors  in  title  had  made  at 
Cincinnati,  Ohio,  in  1836,  with  General  T.  Jefferson  Chambers 
of  the  Texas  army,  the  motive  of  which  contract  was  set  forth 
in  the  following  words:  "That  the  party  of  the  second  part, 
being  desirous  of  assisting  the  said  General  T.  Jefferson  Cham- 
bers, who  is  now  engaged  in  raising,  arming  and  equipping  vol- 
unteers for  Texas,  and  who  is  in  want  of  means  therefor;  and 
being  extremely  desirous  to  advance  the  cause  of  freedom  and 
the  independence  of  Texas,  have  agreed  to  purchase  of  the  said 
T.  Jefferson  Chambers,  of  his  private  estate,  the  lands  herein- 
after described."  The  bill  averred  that  although  the  money 
promised  had  been  paid,  Chambers  had  refused  to  convey  the 
land.  The  District  Court  decided  that  the  contract  was  illegal 
and  void  and  dismissed  the  bill.] 

MR.  CHIEF  JUSTICE  TANEY  delivered  the  opinion  of  the 
court.  .  .  . 

The  validity  of  this  contract  depends  upon  the  relation  in 
which  this  country  then  stood  to  Mexico  and  Texas;  and  the 
duties  which  these  relations  imposed  upon  the  government  and 
citizens  of  the  United  States. 

Texas  had  declared  itself  independent  a  few  months  previous 
to  this  agreement.  But  it  had  not  been  acknowledged  by  the 
United  States ;  and  the  constituted  authorities  charged  with  our 
foreign  relations  regarded  the  treaties  we  had  made  with  Mexico 
as  still  in  full  force,  and  obligatory  upon  both  nations.  By  the 
treaty  of  limits,  Texas  had  been  admitted  by  our  government  to 
be  a  part  of  the  Mexican  territory;  and  by  the  first  article  of 
the  treaty  of  amity,  commerce,  and  navigation,  it  was  declared, 
"that  there  should  be  a  firm,  inviolable,  and  universal  peace, 
and  a  true  and  sincere  friendship  between  the  United  States 
of  America  and  the  United  Mexican  States,  in  all  the  extent  of 
their  possessions  and  territories,  and  between  their  people  and 
citizens  respectively,  without  distinction  of  persons  or  place." 
These  treaties,  while  they  remained  in  force,  were,  by  the  Con- 
stitution of  the  United  States,  the  supreme  law,  and  binding 
not  only  upon  the  government,  but  upon  every  citizen.  No  con- 
tract could  lawfully  be  made  in  violation  of  their  provisions. 

Undoubtedly,  when  Texas  had  achieved  her  independence,  no 
previous  treaty  could  bind  this  country  to  regard  it  as  a  part 
of  the  Mexican  territory.  But  it  belonged  to  the  government, 
and  not  to  individual  citizens,  to  decide  when  that  event  had 


796  RIGHTS  AND  DUTIES  OF  NEUTRALS. 

taken  place.  And  that  decision,  according  to  the  laws  of  na- 
tions, depended  upon  the  question  whether  she  had  or  had  not 
a  civil  government  in  successful  operation,  capable  of  perform- 
ing the  duties  and  fulfilling  the  obligations  of  an  independent 
power.  It  depended  upon  the  state  of  the  fact,  and  not  upon 
the  right  which  was  in  contest  between  the  parties.  And  the 
President,  in  his  message  to  the  Senate  of  .Dec.  22,  1836,  in  re- 
lation to  the  conflict  between  Mexico  and  Texas,  which  was  still 
pending,  says:  "All  questions  relative  to  the  government  of 
foreign  nations,  whether  of  the  old  or  the  new  world,  have  been 
treated  by  the  United  States  as  questions  of  fact  only,  and  our 
predecessors  have  cautiously  abstained  from  deciding  upon  them 
until  the  clearest  evidence  was  in  their  possession,  to  enable 
them  not  only  to  decide  correctly,  but  to  shield  their  decision 
from  every  unworthy  imputation."  Senate  Journal  of  1836, 
37,  p.  54. 

Acting  upon  these  principles,  the  independence  of  Texas  was 
not  acknowledged  by  the  government  of  the  United  States  until 
the  beginning  of  March,  1837.  Up  to  that  time,  it  was  regarded 
as  a  part  of  the  territory  of  Mexico.  The  treaty  which  admitted 
it  to  be  so,  was  held  to  be  still  in  force  and  binding  on  both 
parties,  and  every  effort  made  by  the  government  to  fulfil  its 
neutral  obligations,  and  prevent  our  citizens  from  taking  part 
in  the  conflict.  This  is  evident,  from  an  official  communication 
from  the  President  to  the  Governor  of  Tennessee,  in  reply  to 
an  inquiry  in  relation  to  a  requisition  for  militia,  made  by  Gen- 
eral Gaines.  The  despatch  is  dated  in  August,  1836;  and  the 
President  uses  the  following  language :  ' '  The  obligations  of  our 
treaty  with  Mexico,  as  well  as  the  general  principles  which  gov- 
ern our  intercourse  with  foreign  powers,  require  us  to  maintain 
a  strict  neutrality  in  the  contest  which  now  agitates  a  part  of 
that  republic.  So  long  as  Mexico  fulfils  her  duties  to  us,  as 
they  are  defined  by  the  treaty,  and  violates  none  of  the  rights 
which  are  secured  by  it  to  our  citizens,  any  act  on  the  part  of 
the  Government  of  the  United  States,  which  would  tend  to 
foster  a  spirit  of  resistance  to  her  government  and  laws,  what- 
ever may  be  their  character  or  form,  when  administered  within ' 
her  own  limits  and  jurisdiction,  would  be  unauthorized  and 
highly  improper."  Ex.  Doc.  1836,  1837,  Vol.  1,  Doc.  2,  p.  58. 

And  on  the  very  day  on  which  the  agreement  of  which  we 
are  speaking  was  made,  (Sept.  16,  1836),  Mr.  Forsyth,  the  Sec- 
retary of  State,  in  a  note  to  the  Mexican  Minister,  assured  him 


KENNETT  v.  CHAMBERS.  797 

that  the  government  had  taken  measures  to  secure  the  execution 
of  the  laws  for  preserving  the  neutrality  of  the  United  States, 
and  that  the  public  officers  were  vigilant  in  the  discharge  of 
that  duty.  Ex.  Doc.  Vol.  1,  Doc.  2,  pp.  63-64. 

And  still  later,  the  President,  in  his  message  to  the  Senate 
of  Dec.  22,  1836,  before  referred  to,  says:  "The  acknowledg- 
ment of  a  new  State  as  independent,  and  entitled  to  a  place  in 
the  family  of  nations,  is  at  all  times  an  act  of  great  delicacy 
and  responsibility;  but  more  especially  so  when  such  a  State 
has  forcibly  separated  itself  from  another,  of  which  it  formed 
an  integral  part,  and  which  still  claims  dominion  over  it. ' '  And, 
after  speaking  of  the  policy  which  our  government  had  always 
adopted  on  such  occasions,  and  the  duty  of  maintaining  the 
established  character  of  the  United  States  for  fair  and  impartial 
dealing,  he  proceeds  to  express  his  opinion  against  the  acknowl- 
edgment of  the  independence  of  Texas,  at  that  time,  in  the  fol- 
lowing words: — 

"It  is  true,  with  regard  to  Texas,  the  civil  authority  of  Mex- 
ico has  been  expelled,  its  invading  army  defeated,  the  chief  of 
the  republic  himself  captured,  and  all  present  power  to  control 
the  newly  organized  Government  of  Texas  annihilated  within 
its'  confines.  But,  on  the  other  hand,  there  is,  in  appearance  at 
least,  an  immense  disparity  of  physical  force  on  the  side  of 
Mexico.  The  Mexican  republic,  under  another  executive,  is 
rallying  its  forces  under  a  new  leader,  and  menacing  a  fresh 
invasion  to  recover  its  lost  dominion.  Upon  the  issue  of  this 
threatened  invasion,  the  independence  of  Texas  may  be  consid- 
ered as  suspended;  and,  were  there  nothing  peculiar  in  the  rel- 
ative situation  of  the  United  States  and  Texas,  our  acknowledg- 
ment of  its  independence  at  such  a  crisis  would  scarcely  be 
regarded  as  consistent  with  that  prudent  reserve  with  which  we 
have  heretofore  held  ourselves  bound  to  treat  all  similar  ques- 
tions. ' ' 

The  whole  object  of  this  message  appears  to  have  been  to  im- 
press upon  Congress  the  impropriety  of  acknowledging  the  in- 
dependence of  Texas  at  that  time;  and  the  more  especially  as 
the  American  character  of  her  population,  and  her  known  desire 
to  become  a  State  of  this  Union,  might,  if  prematurely  acknowl- 
edged, bring  suspicion  upon  the  motives  by  which  we  were 
governed. 

We  have  given  these  extracts  from  the  public  documents  not 
only  to  show  that,  in  the  judgment  of  our  government,  Texas 


798  RIGHTS  AND  DUTIES  OF  NEUTRALS. 

had  not  established  its  independence  when  this  contract  was 
made,  but  to  show  also  how  anxiously  the  constituted  authorities 
were  endeavoring  to  maintain  untarnished  the  honor  of  the 
country,  and  to  place  it  above  the  suspicion  of  taking  any  part 
in  the  conflict. 

This  being  the  attitude  in  which  the  government  stood,  and 
this  its  open  and  avowed  policy,  upon  what  grounds  can  the 
parties  to  such  a  contract  as  this,  come  into  a  court  of  justice 
of  the  United  States  and  ask  for  its  specific  execution?  It  was 
made  in  direct  opposition  to  the  policy  of  the  government,  to 
which  it  was  the  duty  of  every  citizen  to  conform.  And,  while 
they  saw  it  exerting  all  its  power  to  fulfil  in  good  faith  its  neu- 
tral obligations,  they  made  themselves  parties  to  the  war,  by 
furnishing  means  to  a  general  of  the  Texan  army,  for  the 
avowed  purpose  of  aiding  and  assisting  him  in  his  military  op- 
erations. 

It  might  indeed  fairly  be  inferred,  from  the  language  of  the 
contract  and  the  statements  in  the  appellants'  bill,  that  the 
volunteers  were  to  be  raised,  armed,  and  equipped  within  the 
limits  of  the  United  States.  The  language  of  the  contract  is: 
"That  the  said  party  of  the  second  part  (that  is  the  complain- 
ants), being  desirous  of  assisting  the  said  General  T.  Jefferson 
Chambers,  who  is  now  engaged  in  raising,  arming  and  equip- 
ping volunteers  for  Texas,  and  is  in  want  of  means  therefor." 
And  as  General  Chambers  was  then  in  the  United  States,  and 
was,  as  the  contract  states,  actually  engaged  at  that  time  in  rais- 
ing, arming,  and  equipping  volunteers,  and  was  in  want  of 
means  to  accomplish  his  object,  the  inference  would  seem  to  be 
almost  irresistible  that  these  preparations  were  making  at  or 
near  the  place  where  the  agreement  was  made,  and  that  the 
money  was  advanced  to  enable  him  to  raise  and  equip  a  military 
force  in  the  United  States.  And  this  inference  is  the  stronger, 
because  no  place  is  mentioned  where  these  preparations  are  to 
be  made,  and  the  agreement  contains  no  engagement  on  his  part, 
or  proviso  on  theirs,  which  prohibited  him  from  using  these 
means  and  making  these  military  preparations  within  the  limits 
of  the  United  States. 

If  this  be  the  correct  interpretation  of  the  agreement,  the 
contract  is  not  only  void,  but  the  parties  who  advanced  the 
money  were  liable  to  be  punished  in  a  criminal  prosecution,  for 
a  violation  of  the  neutrality  laws  of  the  United  States.  And 
certainly,  with  such  strong  indications  of  a  criminal  intent,  and 


KENNETT  v.  CHAMBERS.  799 

without  any  averment  in  the  bill  from  which  their  innocence 
can  be  inferred,  a  court  of  chancery  would  never  lend  its  aid 
to  carry  the  agreement  into  specific  execution,  but  would  leave 
the  parties  to  seek  their  remedy  at  law.  And  this  ground  would 
of  itself  be  sufficient  to  justify  the  decree  of  the  District  Court 
dismissing  the  bill. 

But  the  decision  stands  on  broader  and  firmer  ground,  and 
this  agreement  cannot  be  sustained  either  at  law  or  in  equity. 
The  question  is  not  whether  the  parties  to  this  contract  violated 
the  neutrality  laws  of  the  United  States  or  subjected  themselves 
to  a  criminal  prosecution;  but  whether  such  a  contract,  made 
at  that  time,  within  the  United  States,  for  the  purposes  stated 
in  the  contract  and  the  bill  of  complaint,  was  a  legal  and  valid 
contract,  and  such  as  to  entitle  either  party  to  the  aid  of  the 
courts  of  justice  of  the  United  States  to  enforce  its  execution. 

The  intercourse  of  this  country  with  foreign  nations,  and  its 
policy  in  regard  to  them,  are  placed 'by  the  Constitution  of  the 
United  States  in  the  hands  of  the  government,  and  its  decisions 
upon  these  subjects  are  obligatory  upon  every  citizen  of  the 
Union.  He  is  bound  to  be  at  war  with  the  nation  against  which 
the  war-making  power  has  declared  war,  and  equally  bound  to 
commit  no  act  of  hostility  against  a  nation  with  which  the  gov- 
ernment is  in  amity  and  friendship.  This  principle  is  univer- 
sally acknowledged  by  the  laws  of  nations.  It  lies  at  the  foun- 
dation of  all  government,  as  there  could  be  no  social  order  or 
peaceful  relations  between  the  citizens  of  different  countries 
without  it.  It  is,  however,  more  emphatically  true  in  relation 
to  citizens  of  the  United  States.  For  as  the  sovereignty  resides 
in  the  people,  every  citizen  is  a  portion  of  it,  and  is  himself 
personally  bound  by  the  laws  which  the  representatives  of  the 
sovereignty  may  pass,  or  the  treaties  into  which  they  may  enter, 
within  the  scope  of  their  delegated  authority.  And  when  that 
authority  has  plighted  its  faith  to  another  nation  that  there 
shall  be  peace  and  friendship  between  the  citizens  of  the  two 
countries,  every  citizen  of  the  United  States  is  equally  and  per- 
sonally pledged.  The  compact  is  made  by  the  department  of 
the  government  upon  which  he  himself  has  agreed  to  confer  the 
power.  It  is  his  own  personal  compact  as  a  portion  of  the  sov- 
ereignty in  whose  behalf  it  is  made.  And  he  can  do  no  act,  nor 
enter  into  any  agreement  to  promote  or  encourage  revolt  or 
hostilities  against  the  territories  of  a  country  with  which  our 
government  is  pledged  by  treaty  to  be  at  peace,  without  a  breach 


800  RIGHTS  AND  DUTIES  OF  NEUTRALS. 

of  his  duty  as  a  citizen,  and  the  breach  of  the  faith  pledged  to 
the  foreign  nation.  And  if  he  does  so  he  cannot  claim  the  aid 
of  a  court  of  justice  to  enforce  it.  The  appellants  say,  in  their 
contract,  that  they  were  induced  to  advance  the  money  by  the 
desire  to  promote  the  cause  of  freedom.  But  our  own  freedom 
cannot  be  preserved  without  obedience  to  our  laws,  nor  social 
order  preserved  if  the  judicial  branch  of  the  government  coun- 
tenanced and  sustained  contracts  made  in  violation  of  the  duties 
which  the  law  imposes,  or  in  contravention  of  the  known  and 
established  policy  of  the  political  department,  acting  within  the 
limits  of  its  constitutional  power. 

But  it  has  been  urged  in  the  argument  that  Texas  was  in 
fact  independent,  and  a  sovereign  state  at  the  time  of  this  agree- 
ment; and  that  the  citizen  of  a  neutral  nation  may  lawfully 
lend  money  to  one  that  is  engaged  in  war,  to  enable  it  to  carry 
on  hostilities  against  its  enemy. 

It  is  not  necessary,  in  the  case  before  us,  to  decide  how  far 
the  judicial  tribunals  of  the  United  States  would  enforce  a  con- 
tract like  this,  when  two  states,  acknowledged  to  be  independ- 
ent, were  at  war,  and  this  country  neutral.  It  is  a  sufficient 
answer  to  the  argument  to  say  that  the  question  whether  Texas 
had  or  had  not  at  that  time  become  an  independent  state,  was 
a  question  for  that  department  of  our  government  exclusively 
which  is  charged  with  our  foreign  relations.  And  until  the 
period  when  that  department  recognized  it  as  an  independent 
state,  the  judicial  tribunals  of  the  country  were  bound  to  con- 
sider the  old  order  of  things  as  having  continued,  and  to  regard 
Texas  as  a  part  of  the  Mexican  territory.  And  if  we  undertook 
to  inquire  whether  she  had  not  in  fact  become  an  independent 
sovereign  state  before  she  was  recognized  as  such  by  the  treaty- 
making  power,  we  should  take  upon  ourselves  the  exercise  of 
political  authority,  for  which  a  judicial  tribunal  is  wholly  unfit, 
and  which  the  Constitution  has  conferred  exclusively  upon  an- 
other department. 

This  is  not  a  new  question.  It  came  before  the  court  in  the 
case  of  Rose  v.  Himely,  4  Cr.  272,  and  again  in  Gelston  v.  Hoyt, 
3  Wheat.  324.  And  in  both  of  these  cases  the  court  said,  that 
it  belongs  exclusively  to  governments  to  recognize  new  states  in 
the  revolutions  which  may  occur  in  the  world;  and  until  such 
recognition,  either  by  our  own  government  or  the  government 
to  which  the  new  state  belonged,  courts  of  justice  are  bound  to 
consider  the  ancient  state  of  things-  as  remaining  unaltered. 


KENNETT  v.  CHAMBERS.  801 

It  was  upon  this  ground  that  the  Court  of  Common  Pleas  in 
England,  in  the  case  of  De  "Wutz  v.  Hendricks,  9  Moo.  586,  .de- 
cided that  it  was  contrary  to  the  law  of  nations  for  persons 
residing  in  England  to  enter  into  engagements  to  raise  money 
by  way  of  loan  for  the  purpose  of  supporting  subjects  of  a  for- 
eign state  in  arms  against  a  government  in  friendship  with 
England,  and  that  no  right  of  action  attached  upon  any  such 
contract.  And  this  decision  is  quoted  with  approbation  by 
Chancellor  Kent,  in  1  Kent,  Com.  116. 

Nor  can  the  subsequent  acknowledgment  of  the  independence 
of  Texas,  and  her  admission  into  the  Union  as  a  sovereign  State, 
affect  the  question.  The  agreement  being  illegal  and  absolutely 
void  at  the  time  it  was  made,  it  can  derive  no  force  or  validity 
from  events  which  afterwards  happened. 

But  it  is  insisted,  on  the  part  of  the  appellants,  that  this  con- 
tract was  to  be  executed. in  Texas,  and  was  valid  by  the  laws  of 
Texas,  and  that  the  District  Court  for  that  State,  in  a  contro- 
versy between  individuals,  was  bound  to  administer  the  laws  of 
the  State,  and  ought  therefore  to  have  enforced  this  agreement. 

This  argument  is  founded  in  part  on  a  mistake  of  the  fact. 
The  contract  was  not  only  made  in  Cincinnati,  but  all  the  stip- 
ulations on  the  part  of  the  appellants  were  to  be  performed 
there  and  not  in  Texas.  And  the  advance  of  money  which  they 
agreed  to  make  for  military  purposes  was  in  fact  made  and  in- 
tended to  be  made  in  Cincinnati,  by  the  delivery  of  their  prom- 
issory notes,  which  were  accepted  by  the  appellee  as  payment 
of  the  money.  This  appears  on  the  face  of  the  contract.  And 
it  is  this  advance  of  money  for  the  purposes  mentioned  in  the 
agreement,  in  contravention  of  the  neutral  obligations  and  pol- 
icy of  the  United  States,  that  avoids  the  contract.  The  mere 
agreement  to  accept  a  conveyance  of  land  lying  in  Texas,  for  a 
valuable  consideration  paid  by  them,  would  have  been  free  from 
objection. 

But  had  the  fact  been  otherwise,  certainly  no  law  of  Texas 
then  or  now  in  force  could  absolve  a  citizen  of  the  United  States, 
while  he  continued  such,  from  his  duty  to  this  government,  nor 
compel  a  court  of  the  United  States  to  support  a  contract,  no 
matter  where  made  or  where  to  be  executed,  if  that  contract 
was  in  violation  of  their  laws,  or  contravened  the  public  policy 
of  the  government,  or  was  in  conflict  with  subsisting  treaties 
with  a  foreign  nation. 
53 


802  RIGHTS  AND  DUTIES  OF  NEUTRALS. 

We  therefore  hold  this  contract  to  be  illegal  and  void,  and 
affirm  the  decree  of  the  District  Court. 
MB.  JUSTICE  DANIEL  and  MR.  JUSTICE  GRIER  dissented. 


THE  HELEN. 

HIGH  COUET  OF  ADMIRALTY  OF  ENGLAND.     1865. 
Law  Reports,  1  Ad.  and  Ecc.  1. 

In  this  case,  the  master  sued  for  wages  upon  an  agreement 
entered  into  between  himself  and  the  defendants,  the  owners  of 
the  Helen. 

The  defendants,  in  the  fourth  article  of  their  answer,  alleged 
that  "the  agreement  was  made  and  entered  into  for  the  purpose 
of  running  the  blockade  of  the  Southern  ports  of  the  United 
States  of  America,  or  one  of  them,  and  was  and  is  contrary  to 
law,  and  cannot  be  recognized  or  enforced  by  this  Honourable 
Court."  .  .  . 

DR.  LUSHINGTON.  This  is  a  motion  by  the  plaintiff  to  reject 
the  fourth  article  of  the  defendants'  answer.  The  parties  in 
this  cause  are  John  Andrews  Wardell,  formerly  the  master  of 
the  Helen,  plaintiff,  and  the  Albion  Trading  Company,  the 
owners  of  the  ship,  defendants.  The  master  sues  for  wages 
(with  certain  premiums  added)  alleged  to  have  been  earned 
between  July,  1864,  and  March,  1865.  The  answer  states  that 
according  to  the  agreement  as  set  forth  by  the  defendants,  the 
plaintiff  has  been  paid  all  that  was  due  to  him.  This  part  of 
the  answer  is  not  objected  to.  The  fourth  and  last  article  is  the 
one  objected  to — It  alleges  that  the  agreement  was  entered  into 
for  the  purpose  of  breaking  the  blockade  of  the  Southern  States 
of  America ;  that  such  an  agreement  is  contrary  to  law,  and  can- 
not be  enforced  by  this  Court.  In  the  course  of  the  argument, 
the  judgment  in  Ex  parte  Chavasse  re  Grazebrook,  34  L.  J. 
(Bkr.),  17,  was  cited  as  governing  the  case;  a  judgment  recently 
delivered  by  Lord  "Westbury  whilst  he  was  Lord  Chancellor. 
The  law.  there  laid  down  is  briefly  stated,  that  a  contract  of 
partnership  in  blockade-running  is  not  contrary  to  the  munic- 
ipal law  of  this  country ;  'and  by  the  decree  the  partnership  was 
declared  valid,  and  the  accounts  ordered  accordingly.  It  was 


THE  HELEN.  803 

admitted  that  this  decision  is  directly  applicable  to  the  present 
case,  a  suit  to  recover  wages  according  to  a  contract  with  re- 
spect to  an  intended  adventure  to  break  the  blockade. 

That  a  decision  of  the  Lord  Chancellor  is  to  be  treated  by  this 
Court  with  the  greatest  respect  there  can  be  no  doubt,  but  is  it 
absolutely  binding?  There  are  three  tribunals  whose  decisions 
are  absolutely  binding  upon  the  Court  of  Admiralty:  1.  The 
House  of  Lords.  2.  The  Privy  Council.  3.  The  Courts  of 
Common  Law  when  deciding  upon  the  construction  of  a  statute. 
If  a  decision  of  any  of  these  tribunals  is  cited,  all  that  the  Court 
of  Admiralty  can  do  is  to  inquire  if  the  decision  is  applicable 
to  the  case.  If  so,  -then  it  is  the  duty  of  the  Court  to  obey,  what- 
ever may  be  its  own  judgment. 

No  other  decisions  are,  I  believe,  absolutely  binding  on  the 
Court.  On  the  present  occasion,  no  decision  has  been  cited  from 
the  House  of  Lords  or  Privy  Council.  Whatever,  therefore, 
may  be  the  effect  of  the  decisions  of  other  tribunals,  I  am  not 
relieved  from  the  duty  of  reconsidering  the  whole  question. 

An  intimation  has  been  given  that  this  case  will  be  carried  to 
the  Judicial  Committee  [of  the  Privy  Council]  ;  if  so,  I  appre- 
hend that  tribunal  might  be  inclined  to  consider  me  remiss  in 
my  duty  if  I  had  omitted  to  form  an  independent  judgment  on 
the  case,  and  to  state  it  with  my  reasons.  It  is,  I  conceive,  ad- 
mitted on  all  hands,  that  the  Court  must  enforce  the  agreement 
with  the  master,  unless  it  is  satisfied  that  such  agreement  is 
illegal  by  the  municipal  law  of  Great  Britain.  In  order  to  prove 
this  proposition,  the  defendants  say  that  the  agreement  to  break 
the  blockade  by  a  neutral  ship  is,  on  the  part  of  all  persons 
concerned,  illegal  according  to  the  law  of  nations,  and  that  the 
law  of  nations  is  a  part  of  the  municipal  law  of  the  land — ergo, 
this  contract  was  illegal  by  municipal  law. 

Now  a  good  deal  may  depend  on  the  sense  in  which  the  word 
''illegal"  is  used.  I  am  strongly  inclined  to  think  that  the 
defendants  attach  to  it  a  more  extensive  meaning  than  it  can 
properly  bear,  or  was  intended  to  bear  by  those  who  used  it. 
The  true  meaning,  I  think,  is  that  all  such  contracts  are  illegal 
so  far,  that  if  carried  out  they  would  lead  to  acts  which  might, 
under  certain  circumstances,  expose  the  parties  concerned  to 
such  penal  consequences  as  are  sanctioned  by  international  law, 
for  breach  of  blockade,  or  for  the  carrying  of  contraband.  If  so, 
the  illegality  is  of  a  limited  character.  For  instance,  suppose 
a  vessel  after  breaking  the  blockade  completes  her  voyage  home, 


804  RIGHTS  AND  DUTIES  OF  NEUTRALS. 

and  is  afterwards  seized  on  another  voyage,  the  original  taint 
of  illegality — whatever  it  may  have  been — is  purged,  and  the 
ship  cannot  be  condemned;  yet  if  the  voyage  was,  ab  initio, 
wholly  and  absolutely  illegal,  both  by  the  law  of  nations  and  the 
municipal  law,  why  should  its  successful  termination  purge  the 
offence?  Let  me  consider  the  relative  situation  of  the  parties. 
A  neutral  country  has  a  right  to  trade  with  all  other  countries 
in  time  of  peace.  One  of  these  countries  becomes  a  belligerent, 
and  is  blockaded.  "Why  should  the  right  of  the  neutral  be  af- 
fected by  the  acts  of  the  other  belligerent?  The  answer  of  the 
blockading  power  is:  "Mine  is  a  just  and  necessary  war,"  a 
matter  which,  in  ordinary  cases,  the  neutral  cannot  question, 
"I  must  seize  contraband,  I  must  enforce  blockade,  to  carry  on 
the  war."  In  this  state  of  things  there  has  been  a  long  and 
admitted  usage  on  the  part  of  all  civilized  states — a  concession 
by  both  parties,  the  belligerent  and  the  neutral — a  universal 
usage  which  constitutes  the  law  of  nations.  It  is  only  with 
reference  to  this  usage  that  the  belligerent  can  interfere  with 
the  neutral.  Suppose  no  question  of  blockade  or  contraband, 
no  belligerent  could  claim  a  right  of  seizure  on  the  high  seas  of 
a  neutral  vessel  going  to  the  port  of  another  belligerent,  how- 
ever essential  to  his  interest  it  might  be  so  to  do. 

"What  is  the  usage  as  to  blockade?  There  are  several  condi- 
tions to  be  observed  in  order  to  justify  the  seizure  of  a  ship 
for  breach  of  blockade.  The  blockade  must  be  effectual  and 
(save  accidental  interrupton  by  weather)  constantly  enforced. 
The  neutral  vessel  must  be  taken  in  delicto.  The  blockade  must 
be  enforced  against  all  nations  alike,  including  the  belligerent 
one.  When  all  the  necessary  conditions  are  satisfied,  then,  by 
the  usage  of  nations,  the  belligerent  is  allowed  to  capture  and 
condemn  neutral  vessels  without  remonstrance  from  the  neutral 
state.  It  never  has  been  a  part  of  admitted  common  usage  that 
such  voyages  should  be  deemed  illegal  by  the  neutral  state,  still 
less  that  the  neutral  state  should  be  bound  to  prevent  them ;  the 
belligerent  has  not  a  shadow  of  right  to  require  more  than 
universal  usage  has  given  him,  and  has  no  pretence  to  say  to 
the  neutral :  ' '  You  shall  help  me  to  enforce  my  belligerent  right 
by  curtailing  your  own  freedom  of  commerce,  and  making  that 
illegal  by  your  own  law  which  was  not  so  before. ' '  This  doc- ' 
trine  is  not  inconsistent  with  the  maxim  that  the  law  of  nations 
is  part  of  the  law  of  the  land.  That  fact  is,  the  law  of  nations 
has  never  declared  that  a  neutral  state  is  bound  to  impede  or 


THE  HELEN.  805 

diminish  its  own  trade  by  municipal  restriction.  Our  own  For- 
eign Enlistment  Act  is  itself  a  proof  that  to  constitute  transac- 
tions between  British  subjects,  when  neutral  and  belligerents, 
a  municipal  offence  by  the  law  of  Great  Britain,  a  statute  was 
necessary.  If  the  acts  mentioned  in  that  statute  were  in  them- 
selves a  violation  of  municipal  law,  why  any  statute  at  all?  I 
am  now  speaking  of  fitting  out  ships  of  war,  not  of  levying  sol- 
diers, which  is  altogether  a  different  matter.  Then  how  stands 
the  case  upon  authority?  I  may  here  say,  that  in  principle, 
there  is  no  essential  difference  whether  the  question  of  breach 
of  municipal  law  is  raised  with  regard  to  contraband  or  breach 
of  blockade. 

Mr.  Duer  is'  the  only  text-writer  who  maintains  an  opinion 
contrary  to  what  I  have  stated  to  be  the  law.  He  maintains  it 
with  much  ability  and  acuteness,  but  he  stands  alone.  He  him- 
self admits  that  an  insurance  of  a  contraband  voyage  is  no 
offence  against  municipal  law  of  a  neutral  country,  according 
to  the  practice  of  all  the  principal  states  of  continental  Europe. 
(Duer,  Marine  Insurance,  I.  lecture  vii).  In  the  American 
courts  the  question  has  been  more  than  once  agitated,  but  with 
the  same  result.  In  the  case  of  The  Santissima  Trinidad,  7 
Wheaton  340,  Mr.  Justice  Story  says: — "It  is  apparent  that, 
though  equipped  as  a  vessel  of  war,  she  (the  Independencia)  " 
was  sent  to  Buenos  Ayres  on  a  commercial  adventure,  contra-  '  " 
band,  indeed,  but  in  no  shape  violating  our  laws  or  our  national 
neutrality.  If  captured  by  a  Spanish  ship  of  war  during  the 
voyage,  she  would  have  been  justly  condemned  as  good  prize, 
and  for  being  engaged  in  a  traffic  prohibited  by  the  law  of 
nations.  But  there  is  nothing  in  our  law  or  in  the  law  of 
nations  that  forbids  our  citizens  from  sending  armed  vessels  as 
well  as  munitions  of  war  to  foreign  ports  for  sale.  It  is  a 
commercial  adventure  which  no  nation  is  bound  to  prohibit,  and 
which  only  exposes  the  persons  engaged  in  it  to  the  penalty  of 
confiscation."  "There  is  no  pretence  for  saying  that  the  orig- 
inal outfit  on  the  voyage  was  illegal."  Again,  in  Richardson 
v.  The  Marine  Insurance  Company,  6  Mass.,  112,  Parsons,  C.  J., 
observes: — "The  last  class  we  shall  mention  is  the  transporta- 
tion by  a  neutral  of  goods  contraband  of  war  to  the  country  of 
either  of  the  belligerent  powers.  And  here,  it  is  said,  that  these 
voyages  are  prohibited  by  the  law  of  nations,  which  forms  a 
part  of  the  municipal  law  of  every  state,  and,  consequently,  that 
an  insurance  on  such  voyages  made  in  a  neutral  state  is  pro- 


806  RIGHTS  AND  DUTIES  OF  NEUTRALS. 

hibited  by  the  laws  of  that  state,  and  therefore,  as  in  the  case  of 
an  insurance  on  interdicted  commerce,  is  void.  That  there  are 
certain  laws  which  form  a  part  of  the  municipal  laws  of  all 
civilized  states,  regulating  their  mutual  intercourse  and  duties, 
and  thence  called  the  law  of  nations,  must  be  admitted :  as,  for 
instance,  the  law  of  nations  affecting  the  rights  and  the  security 
of  ambassadors.  But  we  do  not  consider  the  law  of  nations,  as- 
certaining what  voyages  or  merchandise  are  contraband  of  war, 
as  having  the  same  extent  and  effect.  It  is  agreed  by  every 
civilized  state  that,  if  the  subject  of  a  neutral  power  shall  at- 
tempt to  furnish  either  of  the  belligerent  sovereigns  with  goods 
contraband  of  war,  the  other  may  rightfully  seize  and  condemn 
them  as  prize.  But  we  do  not  know  of  any  rule  established  by 
the  law  of  nations  that  the  neutral  shipper  of  goods  contraband 
of  war,  is  an  offender  against  his  own  sovereign,  and  liable  to 
be  punished  by  the  municipal  laws  of  his  own  country.  When 
a  neutral  sovereign  is  notified  of  a  declaration  of  war,  he  may, 
and  usually  does,  notify  his  subjects  of  it,  with  orders  to  decline 
all  contraband  trade  with  the  nations  at  war,  declaring  that,  if 
they  are  taken  in  it,  he  cannot  protect  them,  but  riot  announcing 
the  trade  as  a  violation  of  his  own  laws.  Should  their  sovereign 
offer  to  protect  them,  his  conduct  would  be  incompatible  with 
his  neutrality.  And  as,  on  the  one  hand,  he  eannot  complain 
of  the  confiscation  of  his  subjects'  goods,  so,  on  the  other,  the 
power  at  war  does  not  impute  to  him  these  practices  of  his 
subjects.  A  neutral  merchant  is  not  obliged  to  regard  the  state 
of  war  between  other  nations,  but  if  he  ships  goods  prohibited 
jure  belli,  they  may  be  rightfully  seized  and  condemned.  It  is 
one  of  the  cases  where  two  conflicting  rights  exist,  whL-h  either 
party  may  exercise  without  charging  the  other  with  doing 
wrong.  As  the  transportation  is  not  prohibited  by  the  laws  of 
the  neutral  sovereign,  his  subjects  may  lawfully  be  concerned 
in  it ;  and,  as  the  right  of  war  lawfully  authorizes  a  belligerent 
power  to  seize  and  condemn  the  goods,  he  may  lawfully  do  it." 
Lastly,  in  Seton,  Maitland  &  Co.  v.  Low,  1  Johnson,  5,  Mr.  Jus- 
tice Kent  says: — "I  am  of  opinion  that  the  contraband  goods 
were  lawful  goods,  and  that  whatever  is  not  prohibited  to  be 
exported  by  the  positive  law  of  the  country  is  lawful.  It  may 
be  said  that  the  law  of  nations  is  part  of  the  municipal  law  of 
the  land,  and  that  by  that  law  contraband  trade  is  prohibited  to 
neutrals,  and,  consequently,  unlawful.  This  reasoning  is  not 
destitute  of  force;  but  the  fact  is  that  the  law  of  nations  does 


PEARSON  v.  PARSON.  807 

not  declare  the  trade  to  be  unlawful.     It  only  authorizes  the 
seizure  of  the  contraband  articles  by  the  belligerent  powers." 

In  the  English  Courts  the  only  case  in  which  the  point  has 
been  actually  decided  is  the  recent  case  before  the  Lord  Chan- 
cellor, which  I  have  already  adverted  to.  With  regard  to  the 
cases  in  Mr.  Duer's  book,  Naylor  v.  Taylor,  9  B.  &  C.  718, 
Medeiross  v.  Hill,  8  Bing.  231,  it  is  enough  to  say  that,  in  the 
view  which  the  court  eventually  took  of  the  facts,  the  question 
of  law  did  not  arise.  It  is  in  these  two  cases  impossible  to  say 
with  certainty  what  was  the  opinion  of  the  judges  at  nisi  prius. 

I  cannot  entertain  any  doubt  as  to  the  judgment  I  ought  to 
pronounce  in  this  case.  It  appears  that  principle,  authority, 
and  usage  unite  in  calling  on  me  to  reject  the  new  doctrine  that, 
to  carry  on  trade  with  a  blockaded  port,  is  or  ought  to  be  a 
municipal  offence  by  the  law  of  nations.  I  must  direct  the  4th 
article  of  the  answer  to  be  struck  out.  I  cannot  pass  by  the 
fact  that  the  attempt  to  introduce  this  novel  doctrine  comes 
from  an  avowed  particeps  criminis,  who  seeks  to  benefit  himself 
by  it.  As  he  has  failed  on  every  ground,  he  must  pay  the  cost 
of  his  experiment. 


PEARSON  ET  AL.  v.  PARSON  ET  AL. 

UNITED  STATES  CIRCUIT  COURT  FOR  THE  EASTERN  DISTRICT  OF  LOUISIANA. 

1901. 
108  Fed.  461. 

In  Equity.     On  motion  for  preliminary  injunction. 

The  complainants  are  Samuel  Pearson,  a  citizen  of  the  South 
African  Republic,  Edward  Van  Ness,  a  citizen  of  the  state  of 
New  York,  and  Charles  D.  Pierce,  consul  general  of  the  Orange 
Free  State,  whose  citizenship  is  not  set  forth.  In  their  original 
bill  herein  they  aver,  in  substance :  That  the  United  States  are 
at  peace  with  the  South  African  Republic  and  the  Orange  Free 
State,  and  that  Great  Britain  is  at  war  with  the  same.  That 
complainants  are  owners  of  property  situated  in  the  South  Afri- 
can Republic  and  the  Orange  Free  State.  That  Great  Britain, 
by  means  of  armies,  seeks  to  destroy,  and  is  now  destroying,  the 
property  of  complainants.  That,  for  the  purpose  of  carrying 


808  RIGHTS  AND  DUTIES  OF  NEUTRALS. 

on  the  war,  the  steamship  Anglo-Australian,  of  which  J.  Parson 
is  master,  now  lies  in  the  port  of  New  Orleans,  and  is  being 
loaded  with  1,200  mules,  worth  $150,000,  by  Parson,  and  by 
Elder,  Dempster  &  Co.,  who  are  the  agents  for  the  ship,  her 
owners  and  charterers,  and  who  are  represented  by  Robert 
Warriner  and  Mathew  Warriner.  All  of  the  defendants  are 
averred  to  be  British  subjects.  That  the  steamship  Anglo- Aus- 
tralian is  employed  in  the  war  in  the  military  service  of  Great 
Britain  by  her  owners  and  charterers  and  by  the  defendants. 
That  for  some  time  past  the  defendants,  in  aid  of  the  war,  have 
loaded  ships  at  New  Orleans  with  munitions  of  war,  viz.  mules 
and  horses,  and  have  equipped  ships  with  fittings  for  the  pur- 
pose of  carrying  military  supplies  and  munitions  of  war  for 
Great  Britain,  and  have  dispatched  the  ships,  well  knowing  that 
the  munitions  of  war  and  the  ships  are  in  the  military  service 
of  Great  Britain,  and  would  be  employed  in  the  war.  That  the 
steamship  Anglo-Australian  is  about  to  be  dispatched  by  the 
defendants,  loaded  with  mules  and  horses,  being  munitions  of 
war,  which  are  the  property  of  the  government  of  Great  Britain, 
and  the  same  are  to  be  employed  in  the  military  service  of  Great 
Britain.  That  the  defendants  are  making  the  port  of  New  Or-' 
leans  the  basis  of  military  operations  in  aid  of  Great  Britain  in 
the  war,  and  are  using  the  port  for  the  purpose  of  renewal  and 
augmentation  of  the  military  supplies  and  arms  of  Great  Britain 
in  the  war.  That  the  defendants  have  caused  and  are  causing 
complainants  irreparable  injury,  in  that  their  acts  enable  Great 
Britain  to  carry  on  the  war  with  the  South  African  Republic 
and  Orange  Free  State,  wherein  are  found  that  property  of 
complainants,  and  that  the  army  of  Great  Britain  is  enabled,  by 
the  means  furnished  by  the  defendants,  to  lay  waste  and  destroy 
the  farms  and  homes  of  complainants,  and  to  hold  as  prisoners 
of  war  the  wife  and  children  of  the  complainant  Pearson.  That 
the  complainant  Pearson  has  already  suffered  loss  of  property 
to  the  amount  of  $90,000.,  and  is  now  threatened  with  further 
loss  of  $100,000.,  by  the  acts  complained  of  and  the  continuation 
of  the  war.  That  the  war  is  only  carried  on  by  the  renewal  and 
augmentation  of  the  military  supplies  of  Great  Britain  from 
the  ports  of  the  United  States  and  especially  the^  port  of  New 
Orleans,  and  that  when  this  ceases  the  war  will  end.  That  the 
defendants  have  conspired  with  certain  agents  and  servants  of 
Great  Britain,  whose  names  are  unknown,  to  aid  in  the  carding 
on  of  the  war,  in  the  renewal  and  augmentation  of  the  supplies 


PEARSON  v.  PARSON.  809 

of  Great  Britain,  and  in  the  equipping  with  munitions  of  war 
and  the  dispatching  of  the  ship  Anglo- Australian  and  other  ves- 
sels for  the  purpose  of  slaying  the  citizens  of  the  South  African 
Republic  and  the  Orange  Free  State,  and  destroying  their  prop- 
erty, and  more  particularly  to  injure  and  destroy  the  property 
and  rights  of  complainants,  all  in  violation  of  and  against  the 
rights,  privileges,  and  immunities  granted  and  secured  to  com- 
plainants by  the  law  of  nations  and  the  constitution  and  laws  of 
the  United  States.  The  prayer  of  the  original  bill  is,  in  sub- 
stance, for  an  injunction  prohibiting  the  defendants,  their 
agents,  servants,  etc.,  from  loading  on  the  ship  Anglo-Aus- 
tralian, or  other  vessels,  munitions  of  war,  viz.  mules  and  horses 
destined  for  use  by  Great  Britain  in  the  war.  A  restraining 
order  or  temporary  injunction  in  advance  of  a  final  injunction  is 
also  prayed  for.  .  .  . 

PARLANCE,  District  Judge  (after  stating  the  facts).  It  was 
conceded  on  the  argument  that  the  court  has  no  jurisdiction  of 
this  cause  ratione  personarum.  The  complainants  sought  to 
maintain  the  jurisdiction  ratione  materice  by  a  claim  of  right 
under  the  treaty  of  Washington  of  May  8,  1871,  between  Great 
Britain  and  the  United  States  relative  to  the  "Alabama  claims," 
in  which  treaty  it  is  declared  that : 

' '  A  neutral  government  is  bound  .  .  .  not  to  permit  or  suf- 
fer either  belligerent  to  make  use  of  its  ports  or  waters  as  the 
base  of  naval  operations  against  the  other,  or  for  the  purpose  of 
the  renewal  or  augmentation  of  military  supplies  or  arms,  or 
the  recruitment  of  men." 

The  complainants  contend  that,  by  reason  of  this  deelarath?i 
of  the  treaty,  they  are  entitled  to  invoke  the  equity  powers  of 
this  court  for  the  protection  of  their  property.  If  the  complain- 
ants could  be  heard  to  assert  here  rights  personal  to  themselves 
in  the  treaty  just  mentioned,  and  if  the  mules  and  horses  in- 
volved in  this  cause  are  munitions  of  war,  all  of  which  is  dis- 
puted by  the  defendants,  it  would  become  necessary  to  deter- 
mine whether  the  United  States  intended  by  the  above  declara- 
tion of  the  treaty  to  subvert  the  well-established  principle  of 
international  law  that  the  private  citizens  of  a  neutral  nation 
can  lawfully  sell  supplies  to  belligerents.  It  is  almost  impossi- 
ble to  suppose,  a  priori,  that  the  United  States  would  have  done 
so,  and  would  have  thus  provided  for  the  most  serious  and  ex- 
tensive derangement  of  and  injury  to  the  commerce  of  our 


810  RIGHTS  AND  DUTIES  OF  NEUTRALS. 

citizens  whenever  two  or  more  foreign  nations  should  go  to  war ; 
and  it  would  seem  that  there  is  nothing  in  the  treaty,  especially 
when  its  history  and  purposes  are  considered,  which  would  war- 
rant the  belief  that  the  United  States  insisted  upon  inserting 
therein  a  new  principle  of  international  law,  from  which  the 
greatest  damage  might  result  to  the  commerce  of  this  country, 
and  which  was  absolutely  different  from  and  antagonistic  to  the 
rule  and  policy  which  the  government  of  this  country  had  there- 
tofore strenuously  and  invariably  followed.  The  principle  that 
neutral  citizens  may  lawfully  sell  to  belligerents  has  long  since 
been  settled  in  this  country  by  the  highest  judicial  authority. 
In  the  case  of  The  Sanctissima  Trinidad,  7  Wheat.  340,  5  L.  Ed. 
454,  Mr.  Justice  Story,  as  the  organ  of  the  Supreme  Court, 
said: 

"There  is  nothing  in  our  laws  or  in  the  law  of  nations  that 
forbids  our  citizens  from  sending  armed  vessels,  as  well  as  muni- 
tions of  war,  to  foreign  ports  for  sale.  It  is  a  commercial  adven- 
ture which  no  nation  is  bound  to  prohibit,  and  which  only  ex- 
poses the  persons  engaged  in  it  to  the  penalty  of  confiscation." 

See,  also,  the  case  of  The  Bermuda,  3  Wall.  551,  18  L.  Ed.  200. 

16  Am.  &  Eng.  Enc.  Law  (2d  Ed.)  p.  1161,  verUs  "Interna- 
tional Law, ' '  citing  cases  in  support  of  the  text,  says : 

"A  neutral  nation  is,  in  general,  bound  not  to  furnish  muni- 
tions of  war  to  a  belligerent,  but  there  is  no  obligation  upon  it 
to  prevent  its  subjects  from  doing  so ;  and  neutral  subjects  may 
freely  sell  at  home  to  a  belligerent  purchaser,  or  carry  to  a 
belligerent  power,  arms  and  munitions  of  war,  subject  only  to 
the  possibility  of  their  seizure  as  contraband  while  in  transit." 

Numerous  other  authorities  on  this  point  could  be  cited,  if  it 
was  not  deemed  entirely  unnecessary  to  do  so. 

The  principle  has  been  adhered  to  by  the  executive  depart- 
ment of  the  government  from  the  time  when  Mr.  Jefferson  was 
Secretary  of  State  to  the  present  day.  Mr.  Jefferson  said  in 
1793: 

' '  Our  citizens  have  always  been  free  to  make,  vend,  and  export 
arms.  It  is  the  constant  occupation  and  livelihood  of  some  of 
them.  To  suppress  their  callings — the  only  means,  perhaps,  of 
their  subsistence — because  a  war  exists  in  foreign  and  distant 
countries,  in  which  we  have  no  concern,  would  scarcely  be  ex- 
pected. It  would  be  hard  in  principle  and  impossible  in  prac- 
tice. The  law  of  nations,  therefore,  respecting  the  rights  of 


PEARSON  v.  PARSON.  811 

those  at  peace,  does  not  require  from  thejn  such  an  internal  de- 
rangement in  their  occupation." 

To  the  same  effect  are  numerous  other  expressions  and  decla- 
rations of  the  executive  department  of  the  government  from  the 
earliest  period  of  the  country  to  the  present  time.  See  3  Whart. 
Int.  Law  Dig.  par.  391,  tit.  "Munitions  of  War." 

Affidavits  in  the  cause  purport  to  show  that  the  vessels  which 
make  the  exportations  of  mules  and  horses  of  which  the  bills  com- 
plain are  private ' merchant  vessels;  that  they  are  commanded 
by  their  usual  officers,  appointed  and  paid  by  the  owners ;  that 
they  are  manned  by  their  usual  private  crews,  which  are  also 
paid  by  the  owners;  that  they  are  not  equipped  for  war;  that 
they  are  not  in  the  military  service  of  Great  Britain,  nor  con- 
trolled by  the  naval  authorities  of  that  nation;  that  they  carry 
the  mules  and  horses  as  they  would  carry  any  other  cargo ;  and 
that  the  mules  and  horses  are  to  be  landed,  not  on  the  territory 
of  the  South  African  Republic  or  the  Orange  Free  State,  but  in 
Cape  Colony,  which  is  territory  belonging  to  Great  Britain.  If 
these  affidavits  set  out  the  facts  truly,  it  is  difficult  to  see  how 
a  cause  of  complaint  can  arise.  If  a  belligerent  may  come  to 
this  country  and  buy  munitions  of  war,  it  seems  clear  that  he 
may  export  them  as  freight  in  private  merchant  vessels  of  his 
own  or  any  other  nationality,  as  cargo  could  be  exported  by  the 
general  public. 

Another  consideration  in  this  cause  is  whether  the  allegations 
of  threatened  injury  to  the  property  rights  of  the  complainants 
would  in  any  case  warrant  the  interposition  of  a  court  of  equity. 
The  theory  of  the  complainants  is  that,  if  the  injunction  issues 
in  this  cause,  the  war  will  cease,  but  that,  if  these  horses  and 
mules  are  allowed  to  go  to  South  Africa,  the  war  will  be  carried 
on,  and  one  of  the  results  of  its  further  prosecution  will  be  the 
destruction  of  the  complainants'  property  in  South  Africa.  It 
is  not  claimed,  of  course,  that  the  horses  and  mules  are  to  be 
used  specially  to  destroy  the  property  of  the  complainants.  In 
such  cases  as  the  present  one,  where  the  aid  of  equity  is  invoked 
to  protect  property  rights,  the  injury  apprehended  must  be  a 
clear  and  reasonable  one,  proximately  resulting  from  the  act 
sought  to  be  enjoined.  The  injury  apprehended  by  the  com- 
plainants from  the  shipping  of  the  mules  and  horses  seems  to 
be  remote,  indistinct,  and  entirely  speculative.  It  seems  clear 
that,  even  if  this  cause  were  within  the  cognizance  of  this  court, 
there  is  herein  no  such  connection  of  cause  and  effect  between. 


812  EIGHTS  AND  DUTIES  OF  NEUTRALS.     , 

the  shipment  of  the  animals  and  the  destruction  of  complainants' 
property  as  could  sustain  an  averment  of  threatened  irreparable 
injury,  and  that  the  averment  that  the  war  would  cease  if  the 
shipments  are  stopped,  which,  in  the  nature  of  things,  can  only 
be  an  expression  of  opinion  and  hope  concerning  a  matter  hard- 
ly susceptible  of  proof,  could  not  be  made  the  basis  for  judicial 
action. 

It  may  be  well  to  notice  that  there  is  nothing  in  this  cause 
upon  which  could  be  founded  a  charge  that  the  neutrality  stat- 
utes of  the  United  States  are  being  violated.  A  citation  of  au- 
thorities on  this  point  is  deemed  unnecessary.  "While  I  appre- 
hend fully  that  the  complainants  are  not  claiming  through  or 
because  of  the  neutrality  statutes,  still  it  would  seem  that  there 
exists  at  least  a  presumption  that  the  United  States  have  been 
careful  to  provide  in  those  statutes  for  the  punishment  of  every 
breach  of  neutrality  recognized  by  this  country. 

But  the  nature  of  this  cause  is  such  that  none  of  the  considera- 
tions hereinabove  set  out  need  be  decided,  for  the  reason  that  a 
view  of  this  case  presents  itself  which  is  paramount  to  all  its 
other  aspects,  and  leads  irresistibly  to  the  conclusion  that  the 
rule  nisi  must  be  denied.  That  view  is  that  the  case  is  a  polit- 
ical one,  of  which  a  court  of  equity  can  take  no  cognizance,  and 
which,  in  the  very  nature  of  governmental  things,  must  belong 
to  the  executive  branch  of  the  government.  No  precedent  or 
authority  has  been  cited  to  the  court  which,  in  its  opinion, 
could  even  remotely  sustain  the  cause  of  the  complainants.  No 
case  has  been  cited,  nor  do  I  believe  that  any  could  have  been 
cited,  presenting  issues  similar  to  those  of  this  cause.  The  three 
complainants  are  private  citizens.  It  is  true  that  the  complain- 
ant Pierce  avers  that  he  is  consul  general  of  the  Orange  Free 
State;  but  his  demand  is  exclusively  a  personal  one,  and  he 
must  be  deemed  to  be  suing  in  his  personal  capacity.  One  of 
the  complainants  is  an  alien  and  a  citizen  of  the  Orange  Free 
State.  Only  one  of  the  complainants  is  alleged  to  be  a  citizen 
of  the  United  States.  They  own  property  in  the  South  African 
Republic  and  the  Orange  Free  State,  foreign  countries  now  at 
war  with  Great  Britain.  They  fear  that  the  war,  if  continued, 
will  result  in  the  destruction  of  their  property.  They  believe 
that,  if  the  shipment  of  mules  and  horses  from  this  port  are 
stopped,  the  war  will  cease.  They  claim  that,  by  virtue  of  a 
declaration  of  international  law  contained  in  an  international 
treaty  to  which  the  foreign  countries  in  which  their  property  iss 


THE  LUCY  H.  813 

situated  were  not  parties,  they  have  the  personal  right  to  enjoin 
the  shipments  for  the  purpose  of  stopping  the  war,  and  thus 
saving  their  property  from  the  destruction  which  they  appre- 
hend will  result  to  it  from  a  continuation  of  the  war.  When 
complainants'  cause  is  thus  analyzed,  and  the  nature  of  the 
alleged  right  under  the  treaty  is  considered,  it  is  obvious  that  a 
court  of  equity  cannot  take  cognizance  of  the  cause.  The  main 
case  relied  on  by  the  counsel  for  the  complainants  is  the  case 
of  Emperor  of  Austria  v.  Day,  3  De  Gex,  F.  &  J.  217  (English 
Chancery  Reports),  in  which  the  emperor  of  Austria  sought  and 
obtained  an  injunction  to  restrain  the  manufacture  in  England 
of  a  large  quantity  of  notes  purporting  to  be  receivable  as 
money  in,  and  to  be  guaranteed  by,  Hungary.  That  action  was 
brought  by  the  emperor  of  Austria  as  the  sovereign  and  repre- 
sentative of  his  nation,  and  the  case  turned  and  was  decided  on 
considerations  entirely  different  from,  and  in  no  manner  re- 
sembling, those  presented  in  this  cause.  It  may  be  worth  notic- 
ing that  the  counsel  for  the  emperor  of  Austria  freely  conceded 
in  the  argument  of  the  .case  that  the  exportation  of  munitions  of 
war  could  not  be  enjoined.  I  am  clearly  of  opinion  that  this 
cause  is  not  within  the  cognizance  of  this  court,  and  for  that 
reason  the  rule  nisi  must  be  denied. 

BOARMAN,  District  Judge,  who  sat  in  this  cause  with  PAB- 
LANGE,  District  Judge,  concurs  in  the  opinion. 


THE  LUCY  H. 

THE  DISTRICT  COUBT  OF  THE  UNITED  STATES  FOB  THE  NORTHERN  DISTRICT 

OF  FLORIDA.     1916. 

235  Fed.  610. 

In  Admiralty.  Libel  of  information  and  seizure  maritime  by 
the  United  States  against  the  American  schooner  Lucy  H.  for 
violation  of  neutrality  laws.  On  exceptions  to  libel.  .  .  . 

On  September  14,  1915,  the  American  schooner  Lucy  H.,  then 
in  the  port  of  Pensacola,  Fla.,  in  command  of  one  H.  B.  Snell, 
master,  took  on  board,  besides  a  crew  of  9  men  and  15  Mexicans, 
a  cargo  of  162  rifles  and  25,000  rounds  of  ammunition.  Where- 
upon the  vessel  proceeded  to  Key  West,  Fla.,  arriving  there 
about  the  last  of  the  month.  Here  two  more  cases  of  rifles  and 


814          EIGHTS  AND  DUTIES  OF  NEUTRALS. 

a  quantity  of  stores  were  added  to  the  cargo.  On  the  night  of 
Tuesday,  October  19,  1915,  the  vessel  sailed  from  Key  West  in 
an  unauthorized  manner,  and  proceeded  toward  Tuxpam  on  the 
east  coast  of  Mexico.  The  Mexicans  taken  on  board  at  Pensacola 
remained  with  the  vessel  throughout  the  voyage.  They  were  not 
shipped  as  crew  nor  listed  as  passengers.  Near  Tuxpam  the 
Lucy  H.  discharged  2  of  her  crew,  who  went  ashore  with  2  of 
the  Mexicans  in  one  of  the  ship 's  boats  and  did  not  return.  The 
schooner  then  beat  up  and  down  the  Mexican  coast  two  or  three 
days,  during  which  time,  while  off  a  settlement,  another  Mexican 
was  sent  ashore.  Finally  the  Lucy  H.  dropped  anchor,  and  the 
remainder  of  the  Mexicans  and  all  of  the  cargo  were  sent  ashore, 
after  which  the  schooner  sailed  for  Pensacola,  arriving  on  No- 
vember 11,  1915,  where  she  was  seized  upon  a  libel  of  informa- 
tion which  charged  substantially  in  alternative  articles,  under 
section  11  of  the  Penal  Code,  that:  "The  said  schooner  Lucy 
H.,  on  the  14th  day  of  September  A.  D.  1915,  within  the  nav- 
igable waters  of  the  United  States  and  within  the  jurisdiction 
of  this  court,  was  then  and  there  unlawfully  furnished,  fitted 
out  and  supplied  .  .  .  and  armed  with  a  military  expedition 
of  15  armed  men,  more  or  less,  with  intent  to  be  employed  in  the 
service  of  the  Villaistas,  certain  insurgents  in  the  country  called 
Mexico,  with  whom  the  United  States  were  and  are  at  peace, 
with  intent  to  cruise  and  commit  hostilities  against  the  subjects, 
citizens  and  property  of  .  .  ." — First,  the  people  of  Mexico; 
second,  Gen.  Carranza,  a  foreign  prince;  third,  the  colony  of 
Mexico;  fourth,  the  district  of  Mexico;  fifth,  the  republic  of 
Mexico;  sixth,  the  de  facto  government  and  the  forces  of  Gen. 
Carranza ;  with  whom  the  United  States  then  were  and  now  are 
at  peace,  etc.  .  .  . 

SHEPPARD,  District  Judge.  .  .  .  The  American  schooner 
Lucy  H.  was  seized  by  the  United  States  on  a  libel  of  informa- 
tion with  36  articles,  charging  a  violation  of  the  Neutrality  Act 
as  finally  amended  April  20,  1818  and  embodied  in  section  11 
of  the  Penal  Code  of  1910  (Comp.  St.  1913,  §  10175),  the  per- 
tinent provisions  of  which  read: 

"Whoever,  within  the  territory  ...  of  the  United  States 
fits  out  and  arms  .  .  .  any  vessel,  with  intent  that  such  vessel 
shall  be  employed  in  the  service  of  any  foreign  prince  or  state, 
or  of  any  colony,  district,  or  people,  to  cruise  or  commit  hostil- 
ities against  the  subjects,  citizens,  or  property  of  any  foreign 
prince  or  state,  or  of  any  colony,  district,  or  people,  with  whom 


THE  LUCY  H.  815 

the  United  States  are  at  peace  .  .  .  and  every  such  vessel, 
.  .  .  her  tackle  .  .  .  materials  .  .  .  stores  .  .  .  shall 
he  forfeited." 

The  sufficiency  of  the  libel  in  law  is  challenged  hy  several  ex- 
ceptions, the  sixth  and  seventh  of  which  test  the  substance  of 
the  case  as  made  by  the  libel,  and  submits  for  judicial  deter- 
mination the  concrete  question  whether  the  acts  charged  in  the 
libel  as  delictum  come  within  the  inhibition  of  the  statute. 
These  exceptions  maintain  substantially  that  to  violate  the  stat- 
ute the  vessel  must  be  fitted  out  "with  intent  .  .  .  [to]  be 
employed  in  the  service  of  any  foreign  prince  or  state,  or  of  any 
colony,  district,  or  people,  to  cruise  or  commit  hostilities  against 
the  subjects,  citizens,  or  property  of  any  foreign  prince  or  state, 
or  of  any  colony,  district,  or  people,  with  whom  the  United 
States  are  at  peace,"  and  who  are  at  the  time  enjoying  inde- 
pendent political  recognition. 

First.  It  is  contended  that  the  whole  import  of  the  libel  is  that 
the  vessel  was  to  be  employed  in  the  service  of  named  bandits, 
whom  it  is  impossible  to  bring  within  the  first  prohibitive  classes 
described  in  the  Neutrality  Act,  viz.,  "any  foreign  prince  or 
state,  or  of  any  colony,  district  or  people." 

Second.  It  is  contended  by  the  claimant  that,  according  to 
the  articles  of  the  libel,  the  vessel  was  not  fitted  out  to  cruise 
against  the  "subjects,  citizens  or  property  of  any  foreign  prince 
or  state,  or  of  any  colony,  district  or  people  with  whom  the 
United  States  are  at  peace,"  but  against  another  faction  of 
brigands,  not  emulating  the  dignity  of  a  "foreign  prince  or 
state,  or  ...  colony,  district  or  people,"  or  any  designated 
class  entitled  to  the  protection  extended  by  Congress  to  recog- 
nized foreign  nations  or  governments  "at  peace"  with  the 
United  States. 

The  exceptions  therefore  raise  both  the  questions  of  political 
recognition  of  the  foreign  party  or  authority  employing  the  ex- 
pedition, as1  well  as  the  intention  of  Congress  in  amending  the 
statute  by  adding  to  the  section  as  it  originally  read,  in  both 
branches,  the  words  "or  of  any  colony,  district  or  people." 

For  an  intelligent  comprehension  of  the  effect  of  the 
amendment,  a  brief  review  of  the  pertinent  cases  construing  the 
act  before  and  since  the  amendment  may  be  useful.  Many  of 
the  cases  cited,  compared,  and  discussed  by  counsel  in  their  ex- 
haustive arguments  (The  Carond;:let  [D.  C.]  37  Fed.  801;  The 
Conserva  [D.  C.]  38  Fed.  431 ;  The  Florida,  4  Ben.  452,  Fed. 


816  RIGHTS  AND  DUTIES  OF  NEUTRALS. 

Gas.  No.  4,887;  The  Itata,  56  Fed.  505,  5  C.  C.  A.  608)  were 
cases  adjudged  before  the  comprehensive  decision  of  The  Three 
Friends,  166  U.  S.  54,  17  Sup.  Ct.  495,  41  L.  Ed.  897,  and  are 
interesting  more  in  that  they  emphasize  the  marked  reluctance 
of  courts  to  depart  from  established  precedent  than  to  illumi- 
nate the  subject  under  discussion. 

The  inferior  federal  courts,  having  occasion  to  construe  the 
law  with  the  amendment,  have  followed  with  unrelenting  tenac- 
ity Gelston  v.  Hoyt,  3  Wheat.  246,  4  L.  Ed.  381,  which,  accord- 
ing to  the  history  of  the  particular  legislation,  rendered  neces- 
sary the  present  enlarged  provision  of  the  act  to  meet  situations 
wherein  the  previous  or  original  act  because  of  its  restricted 
scope  was  deficient.  Gelston  v.  Hoyt,  supra,  was  an  action  of 
trespass  against  the  collector  and  surveyor  of  the  port  of  New 
York  for  seizing  an  American  ship  under  orders  of  the  Pres- 
ident, dated  July  10,  1810,  for  a  violation  of  the  act  of  1794, 
§  3  (1  Stat.  383,  c.  50),  which  provided  for  cases  in  which  the 
vessel  was  fitted  out  and  armed — 

"with  the  intent  to  be  employed  'in  the  service  of  any  foreign 
prince  or  state,  to  cruise  or  commit  hostilities  upon  the  subjects, 
citizens  or  property  of  another  foreign  prince  or  state,  with 
whom  the  United  States  are  at  peace.'  ' 

The  defendants  in  the  case  pleaded  that  the  seizure  was  jus- 
tified under  the  statute,  and  that  they  were  not  responsible  for 
the  spoliation  of  the  cargo  and  the  damages  suffered  by  the  ship. 
Construing  this  statute,  the  court  said  (page  323  of  3  Wheat., 
4  L.  Ed.  381,  supra]  : 

"But  the  other  point  which  has  been  stated  .  .  .  involves 
the  construction  of  the  act  of  1794  (chapter  50,  §  3).  .  .  . 
No  evidence  was  offered  to  prove  that  either  of  these  govern- 
ments was  recognized  by  the  government  of  the  United  States, 
or  of  France,  'as  a  foreign  prince  or  state';  and,  if  the  court 
was  bound  to  admit  the  evidence,  as  it  stood,  without  this  addi- 
tional proof,  it  must  have  been  upon  the  ground  that  it  was 
bound  to  take  judicial  notice  of  the  relations  of  the  country 
with  foreign  states,  and  to  decide  affirmatively  that  Petion  and 
Christophe  were  foreign  princes  within  the  purview  of  the  stat- 
ute. No  doctrine  is  better  established  than  that  it  belongs  ex- 
clusively to  governments  to  recognize  new  states,  in  the  revolu- 
tions which  occur  in  the  world;  and  until  such  recognition, 
either  by  our  o~sm  government  or  the  government  to  which  the 


THE  LUCY  H.  817 

new  state  belonged,  courts  of  justice  are  bound  to  consider  the 
ancient  state  of  things  as  remaining  unaltered." 

Recognizing  the  effect  of  this  decision,  Congress  in  amending 
the  act  sought  to  extend  its  scope  and  include  other  broadly  de- 
fined persons,  groups,  or  classes  in  the  service  of  whom  hostile 
expeditions  might  be  employed  other  than  princes  or  states,  as 
well  as  against  whom  hostilities  might  be  committed. 

The  Supreme  Court  in  the  case  of  The  Three  Friends,  supra, 
had  under  review  sharply  the  point  whether  the  act  of  fitting 
out  an  expedition  "to  be  employed  in  the  service  of  any  foreign 
prince  or  state,  or  of  any  colony,  district  or  people ' '  was  meant, 
as  held  by  the  lower  court,  to  refer  to  a  "body  politic"  which 
had  been  recognized  by  our  government  at  least  as  "a  bellig- 
erent. ' ' 

The  Supreme  Court,  in  considering  the  application  of  the  first 
branch  of  the  section  which  designates  in  whose  service  the  ex- 
pedition was  to  be  employed,  broadly  held  that  the  word  "peo- 
ple," taken  in  connection  with  the  words  "colony"  and  "dis- 
trict," covered  any  insurgent  or  insurrectionary  body  of  people 
acting  together,  undertaking,  and  conducting  hostilities,  al- 
though its  belligerency  had  not  been  recognized,  and  in  revers- 
ing the  lower  district  court  said: 

"Of  course,  a  political  community  whose  independence  has 
been  recognized  is  a  'state'  under  the  act;  and,  if  a  body  em- 
barked in  a  revolutionary  political  movement,  whose  independ- 
ence has  not  been  recognized,  but  whose  belligerency  has  been 
recognized,  is  also  embraced  by  that  term,  then  the  words  'col- 
ony, district  or  people,'  instead  of  being  limited  to  a  political 
community  which  has  been  recognized  as  a  belligerent,  must 
necessarily  be  held  applicable  to  a  body  of  insurgents  associated 
together  in  a  common  political  enterprise  and  carrying  on  hos- 
tilities against  the  parent  country,  in  the  effort  to  achieve  inde- 
pendence, although  recognition  of  belligerency  has  not  beea 
accorded. ' ' 

The  remaining  question  for  decision  is  whether  or  not  Con- 
gress, by  the  addition  of  the  phrase  "or  of  any  colony,  district 
or  people"  to  the  words  "any  foreign  prince  or  state"  in  the 
second  branch  of  the  section,  sought  to  provide  protection  for 
an  unrecognized  foreign  faction  laying  claims  to  sovereignty. 
By  reference  to  standard  dictionaries,  as  well  as  authorities  on 
international  law,  it  will  be  found  very  well  settled  that  a  "state 
or  nation"  denotes  a  political  community  organized  under  3 


818  EIGHTS  AND  DUTIES  OF  NEUTRALS. 

distinct  government  recognized  and  conformed  to  by  its  citizens 
and  subjects  as  the  supreme  power.  A  "prince,"  in  the  general 
acceptation  of  the  term  according  to  authorities  when  applied 
in  the  law  of  nations,  signifies  a  sovereign,  a  king,  emperor,  or 
ruler;  one  to  whom  power  is  delegated  or  vested.  Necessarily, 
when  the  statute  of  1794  described  the  contending  factions, 
parties,  or  belligerents  as  "any  foreign  prince  or  state  .  .  . 
against  .  .  .  another  foreign  prince  or  state,"  it  described 
a  sovereign  or  a  political  community  entitled  to  admission  into 
the  family  of  nations ;  and,  as  such,  political  recognition  was 
essential  to  the  operation  of  the  statute  as  it  read.  It  did  not 
then  describe  or  cover  in  either  branch  of  the  section  an  insur- 
rectionary body  or  an  unrecognized  force  of  belligerents  con- 
tending for  the  sovereignty  of  any  given  territory.  By  the 
adjudged  cases,  chiefly  Gelston  v.  Hoyt,  supra,  this  defect  in  the 
act  was  disclosed  to  Congress  and  culminated  in  the  re-enactment 
of  April  20,  1818,  now  under  consideration.  In  The  Three 
Friends,  supra,  page  56  of  166  U.  S.,  page  499  of  17  Sup.  Ct. 
[41  L.  Ed.  897],  alluding  to  the  amendments  in  the  first  branch 
of  the  section,  the  court  say : 

"At  all  events,  Congress  imposed  no  limitations  on  the  words 
'colony,  district  or  people,'  by  requiring  political  recognition." 

Further  on  in  its  opinion  the  court  referred  to  the  case  of 
The  Salvador,  L.  R.  3  P.  C.  218,  and  regarded  the  observations 
therein  as  "entirely  apposite,"  and,  as  before  noted,  held  that 
the  amendment  covered  any  "insurgent  or  insurrectionary  body 
of  people  .  .  .  undertaking  and  conducting  hostilities."  In 
passing,  the  court  called  attention  to  the  use  of  the  same  words, 
"colony,  district  or  people,"  in  the  succeeding  part  of  the  sec- 
tion, and  stated  that  as  thus  used  they  were  employed  in  another 
connection,  and  "were  affected  by  obviously  different  consid- 
erations. ' '  While  this  was  a  direct  reference  to  the  ' '  succeeding 
part  of  the  section,"  in  the  light  of  the  opinion  it  cannot  be  held 
to  possess  the  dignity  of  a  construction,  for  the  question  as  to 
its  scope  was  not  before  the  court,  not  necessary  to  the  decision, 
and  hence  could  not  have  been  authoritatively  decided  there. 
In  the  view  of  this  court  such  statement  is  in  no  wise  controlling 
in  the  case  at  bar,  for  it  clearly  falls  within  the  rule  laid  down 
by  Chief  Justice  Marshall  in  the  case  of  Brooks  v.  Marbury, 
24  U.  S.  (11  Wheat.)  78,  6  L.  Ed.  423,  viz.: 

"General  expressions,  in  every  opinion,  are  to  be  taken  in 
connection  with  the  case  in  which  those  expressions  are  used. 


THE  LUCY  H.  819 

If  they  go  beyond  the  case,  they  may  be  respected,  but  ought 
not  to  control  the  judgment  in  a  subsequent  suit  when  the  very 
point  is  presented  for  decision."  Cited  among  other  cases  is 
Schaap  v.  United  States,  210  Fed.  856,  127  C.  C.  A.  415,  text. 

It  may  be  true  that  for  a  political  community  to  be  entitled 
to  political  recognition  under  the  law  of  nations,  it  should  have 
the  attributes  of  sovereignty.  In  that  event  the  provisions  of 
the  statute  "any  foreign  prince  or  state"  would  necessarily 
embrace  such  a  community.  If  recognition  followed,  that  recog- 
nition would  take  place  in  the  orderly  way  prescribed  by  rules 
governing  such  matters  in  national  intercourse.  There  would 
be  the  necessary  representative,  the  formal  demand,  and  the 
formal  action  of  the  political  department  of  the  recognizing 
power. 

Interpreting  one  section  of  the  Neutrality  Act  after  the 
amendments  of  1818,  the  Supreme  Court,  in  the  case  of  Wiborg 
v.  United  States,  163  U.  S.  647,  16  Sup.  Ct.  1127,  1197,  41  L. 
Ed.  289,  text,  observed : 

"It  [the  Neutrality  Act]  was  undoubtedly  designed  in  gen- 
eral to  secure  neutrality  in  wars  between  two  other  nations,  or 
between  contending  parties  recognized  as  belligerents,  but  its 
operation  is  not  necessarily  dependent  on  the  existence  of  such 
state  of  belligerency." 

Congress  undertook  to  preserve  the  neutrality  of  the  United 
States,  not  only  in  wars  between  states  and  nations  recognized, 
but  also  in  insurrections  and  political  revolts  in  foreign  coun- 
tries where  such  contests  produce  a  situation  in  which  both  fac- 
tions are  striving  for  exclusive  dominion.  If  the  United  States 
is  to  preserve  neutrality  toward  other  nations  and  peoples  as 
Congress  designed,  its  ports  cannot  be  used  as  a  base  of  opera- 
tions for  military  expeditions  or  enterprises  which  may  not  only 
go  in  furtherance  of  or  in  assisting  an  insurrectionary  force, 
but  which  in  its  very  nature,  in  the  absence  of  strife,  might 
incite  revolt.  Manifestly,  therefore,  Congress,  in  the  addition 
of  the  words  "colony,  district  or  people,"  to  the  second  branch 
of  this  section  sought  to  provide  for  a  situation  which,  and  to 
describe  a  body  of  persons  whom,  it  was  impracticable  to  recog- 
nize politically. 

There  is  no  apparent  reason  for  restricting  the  interpretation 
of  the  amendment  to  the  first  branch  of  the  section,  as  stated  in 
The  Three  Friends,  supra,  and  there  certainly  is  nothing  in  the 


820  EIGHTS  AND  DUTIES  OF  NEUTRALS. 

opinion  to  warrant  the  view  that  the  words  "foreign  prince  or 
state,  or  of  any  colony,  district  or  people,"  as  used  in  the  second 
branch  of  the  section,  against  whose  "subjects,  citizens  or  prop- 
erty" hostilities  were  intended,  should  receive  a  more  strict 
application.  Indeed,  such  a  construction  would  fail  utterly  to 
compass  what  President  Madison  moved  Congress  to  do  by  his 
earnest  appeal  for  "more  efficient  laws  to  prevent  violations  of 
the  neutrality  of  the  United  States  as  a  nation  at  peace,"  by 
permitting  belligerent  parties  to  arm  and  equip  vessels  within 
the  waters  of  the  United  States  for  military  purposes.  v 

From  what  is  said  it  follows  that  the  construction  placed  on 
the  first  branch  of  the  particular  section  of  the  Neutrality  Act 
is  equally  applicable  to  the  second  branch  of  the  section,  and 
consequently  political  recognition  of  the  objects  of  the  hostil- 
ities is  not  required  as  a  condition  precedent  to  a  violation  of  the 
act,  and  the  exceptions  nembered  6  and  7  will  be  overruled. 

NOTE. — The  much-quoted  statement  of  Justice  Story  to  the  effect 
that  "there  is  nothing  in  our  laws,  or  in  the  law  of  nations,  that 
forbids  our  citizens  from  sending  armed  vessels,  as  well  as  munitions 
of  war,  to  foreign  ports  for  sale"  must  be  construed  with  reference 
to  the  facts  with  which  he  was  dealing.  The  warship  of  his  time 
was  no  such  instrument  of  destruction  as  it  now  is,  nor  did  many 
of  them  differ  so  radically  in  construction  from  a  merchant  ship  as 
is  now  the  case.  Neither  Justice  Story  nor  any  other  judge  of  his 
day  would  have  thought  it  consistent  with  neutrality  for  a  military 
force  of  several  thousand  men  to  be  organized  and  equipped  in  a 
neutral  country;  yet  Washington's  little  army,  which  compelled  the 
surrender  of  Cornwallis  at  Yorktown,  was  a  much  less  formidable 
military  instrument  than  is  a  modern  dreadnaught.  In  Ex  parte 
Chavasse  (1865),  11  Jurist,  n.  s.  400,  Lord  Chancellor  Westbury  quoted 
the  passage  from  Justice  Story's  opinion  cited  above,  and  continued: 

I  take  this  passage  to  be  a  rery  correct  representation  of 
the  present  state  of  the  law  of  England  also.  For  if  a  British 
shipbuilder  builds  a  vessel  of  war  in  an  English  port,  and 
arms  and  equips  her  for  war,  bona  fide  on  his  own  account,  as 
an  article  of  merchandise,  and  not  under  or  by  virtue  of  any 
agreement,  understanding  or  consent  with  a  belligerent  power, 
he  may  lawfully,  if  acting  bona  fide,  send  the  ship  so  armed 
and  equipped  for  sale  as  merchandise  in  a  belligerent  country, 
and  will  not  in  so  doing  violate  the  provisions  or  incur  the 
penalties  of  the  Foreign  Enlistment  Act. 

It  should  be  observed  however  that  the  sort  of  transaction  described 
by  the  Lord  Chancellor  never  arises  in  the  shipbuilding  business  as 
it  is  now  conducted.  Whatever  may  have  been  the  practice  in  the 


NOTE.  821 

time  of  Justice  Story  or  of  Lord  Westbury,  at  the  present  day  war- 
ships are  never  built  as  a  mercantile  venture  in  the  hope  that  when 
offered  for  sale  a  purchaser  will  be  found.  They  are  always  built 
to  order  and  their  construction  is  always  intended  for  the  benefit 
of  an  ascertained  government.  Just  prior  to  the  outbreak  of  war 
with  Spain,  the  United  States  purchased  from  Brazil  two  war  vessels 
in  course  of  construction  in  British  shipyards.  Upon  the  declaration 
of  war,  the  British  Government  notified  the  American  Government 
that  these  vessels  when  completed  would  not  be  allowed  to  leave 
British  waters  until  the  restoration  of  peace.  As  further  illustrating 
the  attitude  of  neutral  governments  towards  trade  in  vessels  see 
United  States  of  America  v.  Pelly  (1899),  4  Com.  Cases,  100,  ante, 
384. 

The  use  of  neutral  territory  for  the  building  and  equipping 'of  war 
vessels  was  most  fully  discussed  in  connection  with  the  Alabama  con- 
troversy. This  case,  notable  not  only  as  establishing  a  new  standard 
of  neutral  duties  but  also  as  the  most  important  example  of  inter- 
national arbitration,  is  discussed  in  Bonfils  (Fauchille),  sees  958,  1465; 
Bernard,  The  Neutrality  of  Great  Britain  during  the  American  Civil 
War;  Cobbett,  Cases  and  Opinions,  II,  320;  Gushing,  The  Treaty  of 
Washington;  Foster,  A  Century  of  American  Diplomacy;  Moore,  Int. 
Arb.,  I,  ch.  xiv;  Moore,  Digest,  VII,  1059.  The  Alabama  case  is  of 
importance  in  the  history  of  the  development  of  the  law  of  neutrality 
because  of  the  Three  Rules  of  the  Treaty  of  Washington.  The  United 
States  insisted  that  these  Rules  were  a  correct  statement  of  existing 
law.  Great  Britain  denied  this,  but  expressed  her  willingness  to  have 
her  conduct  judged  by  them.  The  Rules  were  as  follows: 

A  neutral  Government  is  bound — 

First,  to  use  due  diligence  to  prevent  the  fitting  out,  arming, 
or  equipping,  within  its  jurisdiction,  of  any  vessel  which  it 
has  reasonable  ground  to  believe  is  intended  to  cruise  or  to 
carry  on  war  against  a  Power  with  which  it  is  at  peace;  and 
also  to  use  like  diligence  to  prevent  the  departure  from  its 
jurisdiction  of  any  vessel  intended  to  cruise  or  carry  on  war 
as  above,  such  vessel  having  been  specially  adapted,  in  whole 
or  in  part,  within  such  jurisdiction,  to  warlike  use. 

Secondly,  not  to  permit  or  suffer  either  belligerent  to  make 
use  of  its  ports  or  waters  as  the  base  of  naval  operations 
against  the  other,  or  for  the  purpose  of  the  renewal  or  aug- 
mentation of  military  supplies  or  arms,  or  the  recruitment  of 
men. 

Thirdly,   to   exercise    due   diligence   in   its   own    ports   and 
waters,  and  as  to  all  persons  within  its  jurisdiction,  to  pre- 
vent any  violation  of  the  foregoing  obligations  and  duties. 
Malloy,  Treaties  and  Conventions,  I,  703. 

Whether  these  Rules  were  law  when  formulated  or  not,  they  were 
substantially  embodied  in  Article  8  of  the  Convention  respecting  the 
Rights  and  Duties  of  Neutral  Powers  in  Naval  War  adopted  at  The 
Hague  Conference  of  ^907. 


822          BIGHTS  AND  DUTIES  OF  NEUTRALS. 

For  further  discussion  of  the  duty  of  a  neutral  State  to  prevent 
the  hostile  use  of  its  territory  see  Curtis,  "The  Law  of  Hostile  Military 
Expeditions  as  Applied  by  the  United  States,"  Am.  Jour.  Int.  Law, 
VIII,  1,  224;  Cobbett,  Cases  and  Opinions,  II,  306. 

Since  the  outbreak  of  the  Great  War  of  1914  there  has  been  much 
discussion,  especially  in  America,  of  the  duty  of  neutral  states  to 
prevent  the  export  of  contraband  goods.  This  is  one  of  the  oldest 
questions  in  European  diplomacy.  Almost  a  thousand  years  ago  the 
Byzantine  Emperor  protested  to  the  Doge  of  Venice  against  the  sale 
by  Venetians  of  arms  and  ship  timbers  to  the  Saracens  with  whom 
he  was  at  war,  and  threatened  to  burn  any  of  their  vessels  engaged  in 
such  traffic.  The  Pope  also  denounced  this  unholy  commerce  with 
the  infidels.  But  it  was  so  profitable  that  neither  the  Emperor  nor 
the  Pope  nor  the  Doge  succeeded  in  suppressing  it.  Each  belligerent 
had  to  protect  itself  against  trade  in  contraband  as  best  it  could. 
England  endeavored  to  meet  the  situation  by  admitting  foreign  mer- 
chants to  trade  in  England  only  on  condition  that  they  would  not 
sell  to  England's  enemies.  During  the  Crusades,  which  were  wars 
of  the  adherents  of  one  religion  against  the  adherents  of  another 
religion  rather  than  of  state  against  state,  the  Papacy  was  able  to 
enforce  to  a  considerable  extent  its  prohibition  of  contraband  trade 
with  the  Saracens,  but  as  soon  as  the  wars  with  the  infidels  gave  way 
to  wars  between  Christian  states  themselves  the  basis  of  the  Papal 
prohibition  disappeared  and  contraband  trade  was  resumed.  The  ab- 
sence of  any  conception  of  neutral  obligation,  as  such  obligation  is 
now  understood,  even  permitted  the  enlistment  of  soldiers  in  the 
territory  of  neutral  states.  Since  neutrals  were  thus  ready  to  aid 
belligerents,  the  latter  sought  to  protect  themselves  by  interfering  as 
much  as  possible  with  the  trade  carried  on  with  their  enemies.  In 
course  of  time,  by  treaty  and  by  general  custom,  such  interference 
came  to  be  restricted  to  trade  in  articles  which  could  be  used  in  the 
operations  of  war,  and  by  1600  the  right  of  a  belligerent  to  suppress 
trade  in  contraband  was  generally  recognized.  This  appears  from  the 
writings  of  both  Gentilis  and  Grotius.  Both  these  men,  but  especially 
Grotius,  felt  that  there  was  something  immoral,  or  at  least  repre- 
hensible, in  contraband  trade  and  that  it  ought  to  be  prevented,  but 
neither  of  them  held  that  the  suppression  of  such  trade  was  the  duty 
of  a  neutral  state.  In  the  last  three  centuries  there  have  been  a 
few  instances  in  which  neutral  states  have  attempted  to  restrain  their 
subjects  from  exporting  contraband,  but  whether  this  was  because 
of  their  conception  of  neutral  duty  or  because  of  a  desire  to  protect 
their  own  interests  is  not  always  clear.  The  present  rule  however 
was  given  definite  form  by  the  United  States  in  Hamilton's  Treasury 
Circular  of  August  4,  1793: 

The  purchasing  within,  and  exporting  from  the  United 
States,  by  way  of  merchandise,  articles  commonly  called  con- 
traband, being  generally  warlike  instruments  and  military 
stores,  is  free  to  all  the  parties  at  war,  and  is  not  to  be  in- 
terfered with. 

Moore,  Digest,  VII,  955. 


NOTE.  823 

Both  England  and  France  protested  against  the  principle  thus  an- 
nounced. In  defending  it  the  Secretary  of  State,  Jefferson,  stated  what 
still  remains  the  chief  reason  why  neutral  governments  refuse  to  at- 
tempt to  suppress  trade  in  contraband:  "It  would  be  hard  in  princi- 
ple and  impossible  in  practice." 

That  a  contract  for  the  carriage  of  contraband  goods  is  enforceable 
was  held  in  Northern  Pacific  Railway  v.  American  Trading  Co.  (1904), 
195  U.  S.  439,  465. 

One  of  the  best  statements  of  the  duty  of  a  neutral  state  as  to  trade 
in  contraband  is  Secretary  Lansing's  note  of  August  12,  1915,  in  reply 
to  the  protest  of  Austria-Hungary  of  June  29,  1915.  Other  discus- 
sions of  particular  value  may  be  found  in  J.  W.  Garner,  "Some  True 
and  False  Conceptions  Regarding  the  Duty  of  Neutrals  in  Respect 
to  the  Sale  and  Exportation  of  Arms  and  Munitions  to  Belligerents," 
Proceedings  of  Amer.  Soc.  Int.  Law,  1916,  18;  W.  C.  Morey,  "The  Sale 
of  Munitions  of  War,"  Am.  Jour.  Int.  Law,  X,  467;  C.  N.  Gregory, 
"Neutrality  and  the  Sale  of  Arms,"  Ib.  X,  543;  Sir  William  Vernon 
Harcourt,  Letters  of  Historicus  (defending  the  right  of  British  citizens 
to  sell  arms  to  the  Confederate  States) ;  Pyke,  The  Law  of  Contraband 
of  War,  ch.  vi;  Garner,  II,  ch.  xxxv;  Hyde,  II,  748;  Moore,  Digest,  VII, 
748. 

As  to  the  duty  of  a  neutral  state  to  prevent  acts  of  war  within  its 
jurisdiction  see  The  General  Armstrong,  Moore,  Int.  Arb.  II,  1071. 
If  a  neutral  is  unable  or  unwilling  to  enforce  its  neutrality,  a  bel- 
ligerent may  be  justified  in  resorting  to  self-help  in  order  to  avert 
serious  injury.  Japan  appealed  to  this  principle  in  defense  of  her 
conduct  in  attacking  the  Russian  destroyer  Ryeshitelni  while  lying  in 
the  neutral  port  of  Chefoo,  China.  Whether  the  facts  were  such  as 
to  sustain  the  Japanese  contention  is  undetermined.  For  opposing 
views  see  Hershey,  International  Law  and  Diplomacy  of  the  Russo- 
Japanese  War,  260,  and  Takahashi,  437. 

As  to  whether  citizens  of  neutral  states  may  make  loans  in  sup- 
port of  an  insurrection  against  the  government  of  a  friendly  state, 
see  De  Wiitz  v.  Hendricks  (1824),  9  Moore,  C.  P.,  586,  and  Thompson 
v.  Barclay  (1828),  6  L.  J.  (O.  S.)  Ch.  93  and  (1831),  9  L.  J.  (O.  S.) 
Ch.  215;  Garner,  II,  408;  Cobbett,  Cases  and  Opinions,  II,  365;  Hyde, 
II,  755;  Moore,  Digest,  VII,  976. 

As  to  offenses  under  the  British  Foreign  Enlistment  Act,  see  The 
Gauntlet  (1872),  L.  R.  4  P.  C.  184;  The  Salvador  (1870),  L.  R.  3 
P.  C.  218;  The  International  (1871),  L.  R.  3  A.  &  E.,321;  Regina  v. 
Sandoval  (1887),  56  L.  T.  526;  and  Regina  v.  Jameson  (1896),  L.  R. 
[1896]  2  Q.  B.  425.  For  the  construction  of  the  American  Neutrality 
Act,  see  United  States  v.  Quincy  (1832),  6  Peters,  445;  Wiborg  v. 
United  States  (1896),  163  U.  S.  632;  United  States  v.  Trumbull  (1891), 
48  Fed.  99;  S.  C.  (1893),  56  Fed.  505. 

The  law  as  to  neutral  duties  has  been  largely  codified  by  Conven- 
tion V  respecting  the  Rights  and  Duties  of  Neutral  Powers  and  Per- 
sons in  Case  of  War  on  Land,  and  Convention  XIII  concerning  the 
Rights  and  Duties  of  Neutral  Powers  in  Naval  War,  both  adopted  at 
The  Hague  Conference  of  1907.  See  Scott,  The  Hague  Conventions 


824  RIGHTS  AND  DUTIES  OF  NEUTRALS. 

and  Declarations  of  1899  and  1907,  133,  209.     How  far  these  conven- 
tions are  binding  is  in  dispute. 

On  the  whole  subject  of  neutral  duties  see  Hall,  The  Rights  and 
Duties  of  Neutrals;  Kleen,  Lois  et  Usages  de  la  Neutralite;  Fenwick, 
The  Neutrality  Laws  of  the  United  States;  Cobbett,  Cases  and  Opinions, 
II,  302;  Hyde,  II,  692;  Moore,  Digest,  VII,  ch.  xxviii.  For  discussions 
suggested  by  the  circumstances  peculiar  to  particular  wars  see  for 
the  Boer  war,  Campbell,  Neutral  Rights  and  Obligations  in  the  Anglo- 
Boer  War;  for  the  Russo-Japanese  War,  Ariga,  La  Guerre  Russo-Jap- 
onaise  au  Point  de  Vue  Continental;  Hershey,  International  Law  and 
Diplomacy  of  the  Russo-Japanese  War;  Lawrence,  War  and  Neutrality 
in  the  Far  East;  Smith  and  Sibley,  International  Law  as  Interpreted 
During  the  Russo-Japanese  War;  Takahashi,  International  Law  as  Ap- 
plied to  the  Russo-Japanese  War;  for  the  Great  War,  Alvarez,  La 
Grand  Guerre  et  la  Neutralite  du  Chili;  Garner,  International  Law 
and  the  World  War;  Merignhac  and  L6monon,  Le  Droit  des  Gens  et  la 
Guerre  de  1914-1918;  Naval  War  College,  International  Law  Documents, 
1916,  1917,  1918;  Scott,  Survey  of  International  Relations  between  the 
United  States  and  Germany,  August,  1914 — April  6,  1917. 


TABLE  OF  CASES 


In  this  table  of  cases  are  included  (1)  the  principal  cases  of  which 
the  body  of  the  collection  is  composed;  (2)  all  the  cases  which  are 
described  or  from  which  extracts  are  given  in  the  principal  cases; 
(3)  all  the  cases  cited  in  the  editor's  notes.  The  names  of  the  principal 
cases  and  the  pages  of  this  volume  on  which  they  may  be  found  are 
printed  in  italics. 


Abdallah  v.  Rickards,  4  T.  L.  R. 

622:    137. 
Abd-ul-Messih  v.  Farra,   13   A.  C. 

431:   65,  128,  137. 
Abouloff  v.  Oppenheimer,  10  Q.  B. 

D.   295:    21. 
Achaia  (No.  2),  The,  1  Br.  &  Col. 

P.  C.  635:   627. 

Actaeon,  The,  2  Dodson,  48:    630. 
Adela,   The,   6   Wallace,  266:    659, 

786,  787. 
Adelaide,     The,     2    C.     Robinson, 

llln:   665. 

Admiral,  The,  3  Wallace,  603:  659. 
Adonis,  The,  5  C.  Robinson,  256: 

660. 
Adula,   The,   176   U.   S.  361:    575, 

659,   661,   665,   671. 
Advocate-General    v.    Ranee    Sur- 

nomoye  Dossee,  2  Moore,  P.  C. 

(N.  S.),  22:   306. 

Aeolus,  The,  3  Wheaton,  392:   660. 
Africa,    The,    Burrell,    228:     429, 

776. 
Agency      of      American      Car      & 

Foundry   Co.   v.   American   Can 

Co.,  258  Fed.  363:   82. 
Aghia    Elene,    The    Gazzetta    Uf- 

ficiale,  March  1,  1916:    660. 
Aghios     Spiridon,     The     Gazzetta 

Ufficiale,  Feb.  10,  1916:    660. 


Aina,  The,   Spinks,  8:   230,  601. 
Ainsa  v.  New  Mexico  and  Arizona 

Ry.,  175  U.  S.  76:  324. 
Aksionairnoye    Obschestro    A.    M. 

Luther    v.    Sagor    &    Co.,   L.    R. 

[1921]  1  K.  B.  456:  57. 
Albrecht  v.   Sussman,   2   V.   &  B. 

323:    231,  520. 
Alciator    v.    Smith,    3    Campbell, 

245:  518. 
Alcinous  v.  Nigreu,  4  E.  &  B.  217: 

496,  511,  518. 
Aldworth,    The,   31   T.   L.    R.    36: 

576. 
Alexander  v.   Pfau,   Transvaal   L. 

R.   [1902]   T.  S.  155:    135. 
Alexander,  The,  4  C.  Robinson,  93: 

660. 

Alexander,  The,  60  Fed.  914:  171. 
Alexander,  The,  2  Hurst  &  Bray, 

86:  604. 
Alleganean,  The,  Moore,  Int.  Arb., 

IV,   4332:    156. 
Altman   v.   United   States,   224   U. 

S.  583:  345. 
Alvarez     Y     Sanchez     v.     United 

States,  216  U.  S.  167:   104,  322, 

325. 
Alwina,  The,  L.  R.  [1916]  P.  131: 

701. 
Ambrose  Light,  The,  25  Fed.,  408: 

73,  75. 


825 


826 


TABLE  OF  CASES. 


Amelia,  The,  4  Philadelphia,  417: 

604. 

American,  The,  Burrell,  210:   637. 
American   Banana,   Co.   v.    United 

Fruit  Co.,  213  U.  S.  347:  116. 
American  Insurance  Co.  v.  Canter, 

1  Peters,  511:  297,  302,  313. 
Amistad,  The,  15  Peters,  518:  345. 
Amsinck's  Estate,  In  re,  169  N.  Y. 

Supp.  336:  398. 
Amy  Warwick,  The,  2  Black,  635: 

32. 
Amy   Warwick,    The,    2    Sprague, 

123:  74. 
Amy   Warwick,    The,    2    Sprague, 

150:    601. 
Anastassios  Koroneos,  The,  1  Br. 

&  Col.  P.  C.  519:  576. 
Andersen  v.  Marten,  L.  R.  [1908] 

A.  C.  334:    578. 
Anderson  v.  The   Edam,   13   Fed. 

135:  20. 
Andromeda,  The,  2  Wallace,  481: 

695,  671. 
Anglo-Mexican,  The,  L.  R.  [1916] 

P.  112:  475. 
Anglo-Mexican,  The,  L.  R.   [1918] 

A.  C.  422:  418. 

Ann,  The,   1  Dodson,  221:    430. 
Ann,  The,  1  Gallison,  62:   153. 
Anichab,  The  L.  R.  [1922]  1  A.  C. 

235:    627. 
Anna,    The,   5   C.   Robinson,   373: 

US,  153. 
Annaberg,  The,  2  Br.  &  Col.  P.  C. 

241:  430. 

Anna  Catharina,  The,  4  C.  Robin- 
son, 107:    637. 
Anna    Christiana,    The,    H.    &    M. 

161:    629. 
Anna  Maria,  The,  2  Wheaton,  327 : 

575. 
Annapolis,  The,  30  L.  J.  P.  &  M., 

201:   32. 
Anne,  The,  3  Wheaton,  435:    231, 

334,    775. 
Annette,  The,  L.  R.  [1919]  P.  105: 

56. 
Ann  Green,  The  Ship,  1  Gallison, 

274:   137,  431. 


Antares,  The,  1  Br.  &  Col.  P.  C. 

261:    136,   627. 
Antelope,    The,    10    Wheaton,    66: 

18,  50,  575. 
Anthippi,  The,   Gazzetta  Ufficiale, 

June  2,  1917:   578. 
Antoine  v.  Morshead,  6  Taunton, 

237:  496. 
Antonia  Johanna,  The,  1  Wheaton, 

159:  427,  429,  430,  601,  629,  630. 
Aphrodite,  The,   2  Hurst  &  Bray, 

240:   575. 
Apollo,  The,  4  C.  Robinson,  158: 

680. 
Apollon,    The,    9    Wheaton,    362: 

148,  171. 
Appam,  The  Steamship,  243  U.  S. 

124:   779. 
Apthorpe     v.     Peter     Shoenhofen 

Brewing  Co.,  80  L.  T.  395:  443. 
Argun,  The,  Takahashi,  573:    386. 
Argus,  The,  Moore,  Int.  Arb.,  IV, 

4344:  156. 

Ariadne,  The,  2  Wheaton,  143:  575. 
Ariel,  The,  11  Moore,  P.  C.  119: 

595,  601.. 
Arkansas  v.  Tennessee,  246  U.  S. 

158:   US. 
Armitz  Brown  v.    United    States, 

8  Cranch.  110:  383,  522. 
Arthur,  The,  1  Dodson,  423:   669, 

670. 

Aryol,  The,  Takahashi,  620:    605. 
Astiazaran  v.  Santa  Rita  Land  and 

Mining  Co.,  148  U.  S.  80:  324. 
Asturian,    The,    L,.    R.    [1916]    P. 

150:   457. 
Atalanta,  The,  6  C.  Robinson,  440: 

640. 
Atlantic,  The  Schooner,  37  Ct.  Cl. 

17;   39  Ct.  Cl.  193:    680. 
Attorney-General    for    Canada    v. 

Cain,  L.  R.  [1906]  A.  C.  542:  135. 
Attualita,  The,  238  Fed.  909:    259. 
Aurora,  The,  8  Cranch,  203:  575. 
Australia,  The,   2   Hurst  &  Bray, 

373:   578. 
Avery  v.  Bowden,  25  L.  J.  Q.  B. 

49:  496. 
Axel  Johnson,  The,  L.  R.    [1917] 


TABLE  OF  CASES. 


827 


P.  234:  764. 
Axel  Johnson,   The,  L.  R.   [1921] 

1  A.  C.  473:  769. 
B 
Baer   Brothers   Mercantile   Co.   v. 

Denver  &  Rio  Grande  Ry.,  233 

U.  S.  479:   770. 
Baigorry,    The,    2    Wallace,    474: 

575. 
Baiz,  In  re,  135   U.   S.  403:    231, 

328. 
Baldy  v.  Hunter,  171  U.   S.   388: 

74,  83. 

Baltic,  The,  1  Acton,  25:    692. 
Baltica,  The,  11  Moore,  P.  C.  141: 

429,   430,  582,   595. 
Balto,    The,    L.   R.    [1917]    P.   79: 

749,  769. 
Bangor,  The,  L.  R.  [1916]  P.  181: 

155,   786,   787. 
Barbuit's    Case,    Talbot,    281:    29, 

31,   221,  326. 
Barenfels,  The,  1  Br.  &  Col.  P.  C. 

122:  31,  344. 

Baring  v.  Royal  Exchange  Assur- 
ance Co.,  5  East,  99:  611. 
Barker  v.  Harvey,  181  U.  S.  481: 

324. 
Barnett  v.  Barnett,  9  New  Mexico, 

205:   320. 
Baron     Stjemblad,     The,     L.     R. 

[1918]  A.  C.  173:   746. 
Barrick  v.  Buba,  2  C.  B.   (N.  S.), 

563:   520. 
Bartram  v.   Robertson,   122  U.   S. 

116:   346. 
Bas  v.   Tingy,   4   Dallas,  37:    366, 

388. 

Battle,  The,  6  Wallace,  498:  601. 
Bawean,  The,  L.  R.  [1918]  P.  58: 

591,  595. 

Bawtry,  The,  Takahashi,  659:  700. 
Beaverton,  The,  273  Fed.  539:  260. 
Bee,  The,  Fed.  Cases,  No.  1219: 

182. 
Behring    Sea    Arbitration,    Moore, 

Int.  Art.  I,  755:  156. 
Belgenland,   The,   114   U.   S.   355: 

166, 


Bell   v.   Kennedy,   L.   R.   1  H.   L. 

(Scotch),  307:  137. 
Bellas,  The,  1  Br.  &  Col.  P.  C.  95: 

532. 
Bellefontaine  Improvement  Co.  v. 

Niedringhaus,  181  111.  426:   148. 
Belli,  Ex  parte,  South  African  L. 

R.   [1914]   C.  P.  D.  Part  I,  742: 

389. 
Benito  Estenger,   The,   176   U.   S. 

568:  583. 
Benson  v.  McMahon,  127  U.  S.  457: 

357. 
Berens  v.  Rucker,  1  W.  Bl.  313: 

637. 
Berlin,  The,  L.  R,   [1914]  P.  265: 

604. 
Bermuda,    The,    3    Wallace,    514: 

659,  680,  697,  700,  767. 
Bernhard    v.    Greene,    3    Sawyer, 

230:   170. 
Bernon,  The,  1  C.  Robinson,  102: 

430,  474,  595. 
Betsey,   The,  1   C.   Robinson,   93: 

644,  651. 
Betsey,  The,  1  C.  Robinson,  332: 

664. 
Betsey,  The  Brig,  39  Ct.  Cl.  452: 

642,  701. 
Betsey,  The  Brig,  49  Ct.  Cl.  125: 

642. 
Betsey  and   Polly,  The   Schooner, 

38  Ct.  Cl.  30:  700. 
Bird,  The  Schooner,  38  Ct.  Cl.  228: 

680. 
Birge-Forbes  Co.  v.  Heye,  251  U.  S. 

317:  519. 
Blain,  Ex  parte,  12  Ch.  Div.  522: 

119. 
Blankard  v.  Galdy,  2  Salkeld,  411: 

319. 
Blonde,  The,  L.  R.  [1922]  1  A.  C. 

312:   532. 

Boedes  Lust,  The,  5  C.  Robinson, 

233:  374,  496. 
Bolletta,  The,  Edwards,  171:   191, 

305. 

Bolmer    \(  Edsall,    90   N.   J.   Eq. 
299:   153. 


828 


TABLE  OF  CASES. 


Botiller  v.  Dominguez,  130  IT.  S. 

238:   324. 
Bonna,  The,  L.  R.   [1918]   P.  123: 

151. 
Bors  v.   Preston,   111   U.   S.   252: 

231. 
Boulton  v.  Dobree,  2  Camp.  163: 

396. 
Brage,  The,  Entscheidungen,  267: 

769. 
Boussmaker,  Ex  parte,  13  Vesey, 

71:  496,  511,  520. 
Brandon  v.  Curling,  4  East,  410: 

496. 
Brandon  v.  Nesbitt,  6   T.   R.   23 : 

474,  476. 
Brandon  v.  United  States,  46  Ct. 

Cl.  559:  533. 
Briggs    v.    Lightboats,    11    Allen 

(Mass.),  157:    251,  260. 
Briggs  v.  United  States,  25  Ct.  Cl. 

126:  457. 
Eristow   v.   Towers,   6    T.   R.   35: 

476. 
British  South  Africa  Co.  v.  Com- 

panhia    de    Mozambique,    L.    R. 

[1893]  A.  C.  602:   20,  118. 
Broadmayne,    The,    L.    R.     [1916] 

P.  64:  258,  260. 
Brocks  v.  Phillips,  Cro.  Eliz.,  683: 

510. 
Brooks  v.  Marbury,  11  Wheaton, 

78:    818. 
Brown   v.    Duchesne,   19    Howard, 

183:    185. 
Brown  v.  Hiatts,  15  Wallace,  177: 

521. 
Brown   and   Burton   v.   Franklyn, 

Carth,  474:    618. 
Brymer  v.  Atkins,  1  H.  Bl.  165: 

637. 
Buchanan   v.   Curry,   19   Johnson, 

137:  464. 
Buena    Ventura,    The,    175    U.    S. 

384:    532. 
Bury    v.    Pope,    Croke,    Elizabeth, 

118:    137. 
Butfield   v.   Stranahan,  192   U.   S. 

470:  135. 


Buttenuth  v.  St.  Louis  Bridge  Co., 

123  111.   535:    148. 
Butler  v.  Frontier  Telephone  Co., 

186  N.  Y.  486:  138. 

C 
Cadell  v.  Palmer,  1  C.  &  F.  372: 

505. 
Caldwell     v.    Van    Vlissingen,     9 

Hare,  415:   185. 
Cairnsmore,  The,  L.  R.   [1921]   1 

A.  C.  439:    577. 

California  Fig  Syrup  Co.'s  Trade- 
mark, In  re,  40  Ch.  D.  620:  344. 
Calvin's  Case,  7  Reports,  18a:  135. 
Camelo  v.  Britten,  4  B.  &  A.  184: 

476. 
Campbell    v.    Hall,    Cowper,    204: 

102,    296,   320. 

Carlisle  v.  United  States,  16  Wal- 
lace, 147:   135. 
Carlos   F.   Roses,   The,   177  U.   S. 

655:    601. 
Carl  Walter,  The,  4  C.  Robinson, 

207:  594. 
Carneal    v.    Banks,    10    Wheaton, 

181:   410. 
Carolina,  The,  4  C.  Robinson,  256: 

638,  643,  700. 
Carolina,  The,  6  C.  Robinson,  336: 

605. 
Caroline,  The,  6  C.  Robinson,  461: 

230. 

Caroline,  The,  Spinks,  252:    576. 
Carthage,  The,  Scott,  The  Hague 

Court  Reports,  329;  Wilson,  The 

Hague   Arbitration   Cases,   352: 

768. 
Casdagli  v.  Casdagli,  L.  R.  [1919] 

A.  C.  145:   119,  137,  433. 
Castioni,  In  ref  L.  R.   [1891]  1  Q. 

B.  149:  352. 

Catharina    Elizabeth,    The,    5    C. 

Robinson,  232:  575. 
Catherina    Maria,    The,    Edwards, 

337:    643. 
Catherine    and    Anna,    The,    4    C. 

Robinson,  39:   577. 
Central    India   Mining  Co.   v.    So- 

ciet6  Coloniale  Anversoise,  L.  R. 


TABLE  OF  CASES. 


829 


[1920]  1  K.  B.  753:  457. 

Central  Union  Trust  Co.  v.  Gar- 
van,  254  U.  S.  554:  532. 

Certain  Craft  Captured  on  the 
Victoria  Nyanza,  In  the  Matter 
of,  L.  R.  [1919]  P.  627. 

Cervignano,  The,  Gazzetta  Ufficiale, 
April  23,  1917:  627. 

Cessna  v.  United  States,  169  U.  S. 
165:  104,  324,  325. 

Chae  Chan  Ping  v.  United  States, 
130  U.  S.  581:  108. 

Charkieh,  The,  L.  R.  4  Ad.  &  Ecc. 
59:  55,  65,  206,  260. 

Charlotta,  The,  Edwards,  252:  660. 

Charlotte,  The,  5  C.  Robinson, 
305:  680. 

Charlotte  Christine,  The,  6  C.  Rob- 
inson, 101:  660. 

Charlotte  Sophia,  The,  6  C.  Rob- 
inson, 204n:  767. 

Charlton  v.  Kelly,  229  U.  S.  447: 
340. 

Chavasse,  Ex  parte,  11  Jurist  (N. 
S.),  400:  802,  820. 

Cherokee  Nation  v.  Georgia,  5 
Peters,  1:  36,  42. 

Cherokee  Nation  v.  Southern  Kan- 
sas Ry.  Co.,  135  U.  S.  641:  42. 

Cherokee  Tobacco,  The,  11  Wal- 
lace, 616:  361. 

Cherokee  Trust  Funds,  117  U.  S. 
288:  42. 

Cheshire,  The,  3  Wallace,  231: 
427,  429,  660. 

Chew  v.  Calvert,  Walker  (Miss.), 
54:  312. 

Chicago,  R.  I.  &  Pac.  Ry.  v.  Mc- 
Glinn,  114  U.  S.  542:  318. 

Chili,  The,   L.   R.    [1914]    P.   212: 

532. 
Chirac  v.  Chirac,  2  Wheaton,  259: 

345. 
Chisholm    v.    Georgia,    2    Dallas, 

419:   31. 
Chouteau   v.   Eckhart,   2   Howard, 

344:   524. 

Christina  Margaretha,  The,  6  C. 
Robinson,  62:  665. 


Christopher,  The,   2  C.  Robinson, 

209:   628. 

Chrysopolis,    The,    Gazzetta    Uffi- 
ciale, March  10,  1917:   643. 
Church  v.  Hubbart,  2  Cranch,  187: 

151,  171. 
Circassian,   The,   2   Wallace,   135: 

631,  659,  662,  664,  665,  671,  767. 
City  of  Berne  v.  Bank  of  England, 

9  Ves.  .Tun.  347:  57. 
City  of  London  Real  Property  Co., 

Lt.,  In  re  [1917]  W.  N.  183:  521. 
Clan  Grant,  The,  1  Br.  &  Col.  P. 

C.  272:    430,  496. 
Clapham   Steamship   Co.  v.  Naal- 

ooze   &c.  Vulcaan,  L.  R.    [1917] 

2  K.  B.  639:   450. 
Clarke  v.  Morey,  10  Johnson,  69: 

396,  518,  519. 

Clio,  The,  6  C.  Robinson,  67:  476. 
Coffee  v.  Groover,  123  U.  S.  1:  83, 

325. 
Cohens    v.    Virginia,    6    Wheaton, 

264:  109. 
Coleman   v.   Tennessee,   97   U.    S. 

509:    203,  260. 
Collins  v.   O'Neil,   214  U.   S.  113: 

357. 

Colombian    Government   v.    Roth- 
schild, 1  Sim.  94:  211. 
Columbia,  The,  1  C.  Robinson,  154: 

.659,  671. 
Commercen,  The,  1  Wheaton,  382: 

680. 
Commonwealth    v.    Chapman,    13 

Metcalf   (Mass.),  68:   319. 
Compte  de  Smet  de  Naeyer,  Ent- 

scheidungen,  209:    605. 
Conrad  v.  Waples,  96  U.  S.  279: 

531. 
Constitution,  The,  L.  R.  4  P.  D. 

39:   260. 
Consul  Corfitzon,  The,  L.  R.  [1917] 

A.  C.  550:   628,  769. 
Consul  of  Spain  v.  Conception,  6 

Fed.  Cases,  659:   57. 
Continental  Tyre  &  Rubber  Co.  v. 
Daimler,  L.   R.    [1915]    1   K.   B. 
893: 


830 


TABLE  OF  CASES. 


Cook  v.  Sprigg,  L.  R.  [1899]  A.  C. 

572:   305. 
Cooley  v.  Golden,  52  Mo.  App.  229 : 

148. 
Cooper  v.  Commonwealth,  121  Va. 

338:   137. 
Cooper,  In  re,  143  U.  S.  472:  171, 

360. 
Cope  v.  Doherty,  4  K.  &  J.  367: 

32. 
Copenhagen,  The,  1  C.  Robinson, 

289:   629. 
Coppell   v.   Hall,   7   Wallace,  542: 

231,  476. 
Corbett  v.  Hill,  L.  R.  9  Eq.  671: 

138. 

Gorier  Maritime,  The,  1  C.  Robin- 
son, 287:    629. 
Cornelius,    The,    3    Wallace,    214: 

659. 
Corsican  Prince,  The,  L,  R.  [1916] 

P.  195:   629. 
Cosgrove  v.  Winney,  174  U.  S.  64: 

357. 
Cosmopolite,  The,  4  C.  Robinson, 

8:   475,  476. 
Cotton    Plant,    The,    10    Wallace, 

577:   627. 
Crapo  v.  Kelly,  16  Wallace,   610: 

183. 
Cross    v.    Harrison,    16    Howard, 

164:   194,  203,  301. 
Crow  Dog,  Ex  parte,  109  U.  S.  556: 

42. 

Crown  of  Leon  v.  Admiralty  Com- 
missioners, L.  R.  [1921]  1  K.  B. 

595:   135. 
Cucullu    v.    Louisiana    Insurance 

Co.,  5  Martin,  N.  S.   (La.)   464: 

171. 
Curlew,      The,      Stewart      (Nova 

Scotia),   312:    578. 
Gushing  v.   Laird,   107   U.    S.   69: 

630. 
Gushing,   Adm.   v.    United   States, 

22  Ct.  Cl.   1:    374,  611,  630. 
Cutner  v.  United  States,  17  Wal- 
lace, 517:    74. 


D 

Dacia,  The,  Am.  Jour.  Int.  Law, 

IX,  1015:    595. 
Daifjie,  The,  3  C.  Robinson,  139: 

605. 
Daimler    Co.,    Lt.    v.    Continental 

Tyre  and  Rubber  Co.,  Lt.,  L.  R. 

[1916]    2    A.    C.   307:    434,    448, 

473,  484. 

Dainese  v.  Hale,  91  U.  S.  13:  280. 
Dainese  v.    United   States,   15   Ct. 

Cl.  64:  8. 
Danckebaar    African,    The,    1    C. 

Robison,  107:  431. 
Daniel  Ball,  The,  10  Wallace,  557: 

770. 
Danous,  The,  4  C.  Robinson,  255n: 

430. 
Danube,  The,  3  Lloyd's  P.  C.  152: 

431. 
Daubigny     v.     Davallon,     2     An- 

struther,  462:  520. 
Davenger,    The,    Entscheidungen, 

232:   577. 
Davis  v.   Packard,   7   Peters,   276, 

8  Ib.  312:    231. 

Davis  v.  Police  Jury  of  Concordia, 

9  Howard,  280:  345. 

Davis,  The,  10  Wallace,  15,  260. 
Daubuz  v.  Morshead,  6  Taunt.  332 : 

511. 

De  Bilboa,  The  Packet,  2  C.  Robin- 
son, 133:   540. 
De    Fortuyn,    The,    Burrell,    175: 

786. 
De   Haber  v.  Queen  of  Portugal, 

17  Q.  B.  171:  247. 
De  Jager  v.  Attorney  General  o/ 

Natal,  L.  R.    [1907]    A.  C.  326: 

113. 
De  Jarnette  v.   De   Giverville,   56 

Mo.  440:  520. 
De   Lacey   v.   United    States,    249 

Fed.    625:    398. 
De   la    Croix   v.   Chamberlain,   12 

Wheaton,  599:    324. 
Delassus  v.  United  States,  9  Peters, 

117:   324. 
De  Lima  v.  Bidwell,  182  U.  S.  1: 

298. 


TABLE  OF  CASES. 


831 


De  Lovio  v.  Boit,  2  Gallison,  398: 

20. 
Dent    v.    Emmeger,    14    Wallace, 

308:    325. 
Derfflinger,  (No.  1),  The,  1  Br.  & 

Col.  P.  C.  386:   Jt16. 
Derfflinger,   (No.  3),  The,  1  Br.  & 

Col.  P.  C.  643:  496. 
Derfflinger,   (No.  4),  The,  2  Br.  & 

Col.  P.  C.  102:  430. 
Derfflinger   (No.  1),  The,  3  Br.  & 

Col.  P.  C.  389:  133. 
Der    Mohr,    The,    3    C.    Robinson, 

129:   630. 
Devoe   Manufacturing  Co.,  108  U. 

S.  401:    142. 
De  Wahl  v.  Braune,  1  H.  &  N.  178: 

521. 
Dewing  v.    Perdicaries,   96    U.   S. 

193:  294. 
De  Wiitz  v.   Hendricks,  9  Moore, 

C.  P.  586:    801,   823. 
Diana,    The,    5    C.    Robinson,    60: 

429,  431,  629. 

Diana,  The,   7  Wallace,  354:    660. 
Diligentia,    The,    1    Dodson,    404: 

786. 
Dillon  v.  United  States,  5  Ct.  Cl. 

586:   74. 
Direct  United  States  Cable  Co.  v. 

Anglo-American    Telegraph   Co., 

L.  R.  2  A.  C.  394:  156. 
Dirigo,  The,  L.  R.  [1919]  P.  204: 

769. 
Distington    Hemalite    Iron    Co.   v. 

Possehl   &   Co.,   L.   R.    [1916]    1 

K.  B.   811:    496. 
Divina  Pastora,  The,  4  Wheaton, 

52:    57,  74. 
Doe    v.    Eslava,    9    Howard,    421: 

325,  345. 
Doelwijk,     The,     2      Commercial 

Cases,   202:    767. 
Dolphin,  The,  7  Fed.  Cases,  862: 

767. 

Donaldson  v.  Thompson,  1  Camp- 
bell,  429:    191. 
Dooley  v.  United  States,  182  U.  S. 

222:  192. 


Dora,   The,  L.   R.    [1919]    P.  105: 

56. 

Dorsey  v.  Kyle,  30  Md.  512:    520. 
Dos   Hermanos,   The,  2  Wheaton, 

76:   429,  576. 
Doss    v.    Secretary    of    State    for 

India,  L.  R.  19  Eq.  509:  305. 
Douglas  v.  United  States,  14  Ct.  Cl. 

1:   496. 
Dow  v.   Johnson,   100  U.  S.   158: 

74,   203,   532. 

Dree  Gebroeders,  The,  4  C.  Robin- 
son, 232:  431. 
Du  Belloix  v.  Lord  Waterpark,  1 

D.  &  R.  16:  521. 
Duke    of    Brunswick    v.    King    of 

Hanover,  6  Beav.  38:   208,  211, 

246. 
Dunham    v.    Lamphere,    3    Gray 

(Mass.),  268:   153. 
Dusseldorf,  The,   L.  R.    [1920]    A. 

C.    1034:    787. 
Dutchman,  A,  v.  Lindsay,  Morison, 

Decisions,  11857:   534. 

E 
Eagle,   The,   5   C.   Robinson,   401: 

767. 
Eastern     Extension,     Australasia 

and     China    Telegraph     Co.    v. 

United  States,  48  Ct.  Cl.  33:  103. 
Ebenezer,  The,  6  C.  Robinson,  250: 

766. 
Eden  Hall,  The,  2  Br.  &  Col.  P.  C. 

84:   627. 
Edna,   The,   L.   R.    [1919]    P.   157, 

[1921]  1  A.  C.  735:   596. 
Edward  Carrington  v.  Merchants' 

Insurance    Co.,    8    Peters,    495: 

683. 

Edward,  The,  4  C.  Robinson,  68: 
680,  701. 

Eenrom,  The,  2  C.  Robinson,  1: 
700. 

Egerton  v.  Earl  Brownlow,  4  H.  L. 
C.  1:  505,  506. 

Egyptian  Bonded  Warehouses  Co. 
Ltd.  v.  Yeyasu  Goshi  Kaishi, 
L.  R.  [1922]  1  A.  C.  Ill:  629. 


832 


TABLE  OF  CASES. 


Eir,  The,  Journal  Official,  August 

17,  1916:  628. 
Ekaterinoslav,     The,     Takahashi, 

586:    18. 
Eleanor,    The,    2    Wheaton,    345: 

575. 
Elida,    The,     Entscheidungen,    9: 

154. 
Eliza  Ann,   The,   1   Dodson,   244: 

388,  773. 
Eliza  Ann,  The,  1  Haggard,  257: 

767. 

Elk  v.  Wilkins,  112  U.  S.  94:    42. 
Ella  Warley,  The,  Blatchford,  204: 

577. 
Ellis  v.  Loftus  Iron  Co.,  L.  R.  10 

C.  P.  10:   138. 
Elphinstone     v.     Bedreechund,     1 

Knapp,  P.  C.  316:  305,  532. 
Elsebe,  The,,  5  C.  Robinson,  173: 

575,  630. 
Eltham  v.   Kingsman,  1   B.   &  A. 

683:   506. 
Ely's     Administrator     v.     United 

States,  171  U.  S.  220:    320. 
Emanuel,  The,  1  C.  Robinson,  296: 

430,  602,  637,  643. 
Embden,  The,  1  C.  Robinson,  16: 

595. 
Emil,  The,  1  Br.  &  Col.  P.  C.  257: 

601. 
Emperor  of  Austria  v.  Day,  2  Gift*. 

628:  23,  813. 
Emperor  of  Brazil  v.  Robinson,  5 

Dowl.  522:   258. 
Endeavor,  The  Schooner,  44  Ct.  Cl. 

242:  372. 
Endraught,   The,    1    C.   Robinson, 

22:   680. 
Eolo,    The,   L.    R.    [1918]    2    I.   R, 

78:  258. 
Ernst    Merck,    The,    Spinks,    98: 

311,  587,  595. 
Ertel  Bicber  d   Co.   v.   Rio   Tinto 

Co.,  L.  R.  [1918]  A.  C.  260:  487. 
Erymanthos,  The,  Jour.  Soc.  Comp. 

Leg.  (N.  S.),  XVI,  70:  630. 
Esposito  v.  Bowden,  7  E.  &  B.  763: 

474,  489,  491,  492,  495,  496. 


Essex,   The,   5   C.   Robinson,   368: 

767. 
Estate  of  Henrichs,  180  Cal.  175: 

519. 
Estrella,    The,    4    Wheaton,    298: 

787. 

Esty  v.  Baker,  48  Maine,  495:  138. 
Eumaeus,  The,  1  Br.  &  Col.  P.  C. 

605:  132,  279,  429,  431. 
Evert,  The,   4    C.   Robinson,   354: 

680. 

Exchange,  The,  Edwards,  39:  660. 
Exchange,  The  Schooner  v.  M'Fad- 

don,    7    Cranch,    116:    109,    134, 

177,   211,  232,  245,   251,  257. 
Ezeta,  In  re,  62  Fed.  972:  356,  357. 


Fabrigas     v.     Mostyn,     20     State 

Trials,  181:  320. 
Fair  American,  The  Brig,  39  Ct. 

Cl.  184:  575. 
Fair  Columbian,  The  Brig,  49  Ct. 

Cl.   133:    629,   630. 
Faith  v.  Pearson,  4  Campbell,  357: 

629. 

Falcon,  The,  6  C.  Robinson,  194: 
'    231. 
Falk,   The,  L.   R.    [1921]    1  A.   C. 

787:  577. 
Fama,   The,   5   C.   Robinson,   106: 

189,  285. 

Fanny,  The,  1  Dodson,   443:    576. 
Farina    v.    Silverlock,    1    K.    &    J. 

509:   27. 
Federico,  The,  Decisions  du  Con- 

seil  des  Prises,  162:   643. 
Fedorenko,    In    re,    20    Manitoba, 

221:   356. 

Felicity,  The,  2  Dodson,  381:  630. 
Fenton     Textile     Association     v. 

Krassin,   38  T.  L.   R.   259:    338. 
Ferdinand,    Ex-Tsar    of    Bulgaria, 

In  re,  L.  R.   [1921]    1  Ch.  107: 

531. 

Field  v.  Clark,  143  U.  S.  649:  345. 
Finchley    Electric    Light    Co.     v. 

Finchley   Urban   Council,  L.  R. 
[1903]  1  Ch.  D.  437:  138. 


TABLE  OF  CASES. 


First  National  Bank  v.  Kinner,  1 

Utah,  100:   319. 
Fisher  v.  Begrez,  1  C.  &  M.  117: 

218,  227. 
Fitzsimmons  v.  Newport  Insurance 

Co.,  4  Cranch,  185:  659. 
Flad   Oyen,   The,   1   C.   Robinson, 

135:    606. 
Flamenco,  The,  1  Br.  &  Col.  P.  C. 

509:    431. 
Fleming  v.  Page,  9  Howard,  603: 

46,   196,   203,  300. 
Flindt  v.    Scott,   5   Taunton,   674: 

476,  510. 

Florida,  The,  101  U.  S.  37:  777. 
Florida  v.  Furman,  180  U.  S.  402: 

324. 
Flying  Scud,  The,  6  Wallace,  263: 

659. 

Foltina,  The,  1  Dodson,  450:   296. 
Fong  Yue  Ting  v.  United  States, 

149  U.  S.  698:  134. 
Ford  v.  Surget,  97  U.  S.  594:    74, 

659. 
Fortuna,  The,  4  C.  Robinson,  278: 

630. 
Fortuna,    The,    3    Wheaton,    236: 

576. 
Foster  v.  Globe  Venture  Syndicate, 

[1900]  1  Ch.  84:   57. 
Foster    and    Elam    v.    Nielson,    2 

Peters,  253:   301,  345. 
Fox,  The,  Edwards,  311:    32,  624, 

671,  702. 

Frances,  The,  8  Cranch,  335:  430. 
Frances,  The,  8  Cranch,  418:  599, 

601. 

Franciska,  The,  Spinks,  111:   665. 
Franciska,    The,    2    Spinks,    128: 

667. 
Franciska,   The,   10   Moore,   P.   C. 

37:    648,   671. 
Franklin,  The,  3  C.  Robinson,  217: 

691,  700. 
Frau  Anna  Howina,  The,  Calvo,  V, 

sec.  2767:    767. 
Frau  Ilsabe,  The,  4  C.  Robinson, 

63:  410. 
Frederick  Molke,  The,  1  C.  Robin- 


son, 86:    651,  667,  671,   701. 
French  Republic  v.   Inland  Navi- 
gation Co.,  263  Fed.  410:   212. 
Fried   Krupp,   A.    G.   v.   Orcanera 

Iron  Ore  Co.,  35  T.  L.  R.  234: 

496. 
Fried  Krupp,  A.  G.,  In  re,  L.  R. 

[1917]  2  Ch.  188:  521. 
Friendschaft,     The,     4     Wheaton, 

105:  429,  457. 
Friendship,   The,    6   C.  Robinson, 

420:   643. 
Fronklin,  Ex  parte,  253  Fed.  984: 

398. 
Furtado  v.  Rogers,  3  B.  &  P.  191: 

494,    495,    496. 

G 
Gaelic,    The,     Takahashi,    Chino- 

Japanese  War,  52:  767. 
Gagara,  The,  L.  R.   [1919]  P.  95: 

55. 
Galen,   The   Ship,  37   Ct.   Cl.   89: 

575,  659. 
Gates  v.  Goodloe,  101  U.  S.  612: 

203,  431. 
Gauntlett,  The,  L.  R.  4  P.  C.  184: 

823. 
Gebruder    van    Uden    v.    Burrell, 

1916,  1   S.  L.  T.  117:    430. 
Geipel  v.  Smith,  7  Q.  B.  404:  671. 
Gelston  v.  Hoyt,  3  Wheaton,  246: 

57,  800,  816. 
General    Armstrong,   The,    Moore, 

Int.  Arb.,  II.,  1071:  823. 
General  Hamilton,  The,  6  C.  Rob- 
inson, 61:  595. 
Genessee  Chief,  The,  12  Howard, 

443:  20. 
Geofroy  v.  Riggs,  133  U.  S.  258: 

345. 

George,  The,  1  Mason,  24:   576. 
Georgia  v.  Tennessee  Copper  Co., 

206  U.  S.  230:  139. 
Georgia,  The,  7  Wallace,  32:   595. 
Gerasimo,   The,   11   Moore,   P.   C., 

88:    188,  421,   429,  431. 
Gertruyda,    The,    2    C.    Robinson, 

211:  377. 


834 


TABLE  OF  CASES. 


Gilbert   v.   Sykes,    16    East.   150: 

505. 

Gist  v.  Mason,  1  T.  R.  84<   476. 
Gladstone  v.  Musurus  Bey,  1  H.  & 

M.  495:  211. 
Gladstone  v.  Ottoman  Bank,  1  H. 

&  M.  505:  211. 

Glass  v.  The  Sloop  Betsey,  3  Dal- 
las, 6:    280,  628. 
Glenn  v.  United  States,  13  Howard, 

250:    324. 
Glitra,   The,   Entscheidungen,  34: 

577. 
Goede  Hoop,  The,  Edwards,  327: 

476. 
Golubchick,  The,  1  W.  Robinson, 

143:    168. 
Gonzales  v.  Minor,  Fed.  Cases,  No. 

5330:  182. 
Gooch  v.  United  States,  15  Ct.  Cl. 

281:   533. 
Goss  v.  Withers,  2  Burrow,  683: 

629. 
Graber,   Ex   parte,   247  Fed.  882: 

398. 
Grange,  The,  1  Op.  Att.  Gen.  32: 

155. 
Gran  Para,  The,  7  Wheaton,  471: 

68,  787. 
Grant  v.  United  States,  1  Ct.  Cl. 

41:  533. 
Oray,  Adm.   v.   United  States,  21 

Ct.  Cl.  340:  364. 
Gray  Jacket,  The,  5  Wallace,  342: 

430,  457. 
Green  v.  United  States,  10  Ct.  Cl. 

466:    533. 
Grief swald,  The,   1   Swabey,  430: 

168. 

Grin  T.  Shine,  187  U.  S.  181:  357. 
Griswold  v.  Waddington,  16  John- 
son, 438:  W,  495. 
Grove  v.  Mott,  46  N.  J.  Law,  328: 

204. 
Guille  v.  Swan,  19  Johnson,  381: 

138. 
Gute  Gesellschaft  Michael,  The,  4 

C.  Robinson,  94:  680. 
Gutenfels,  The,  1  Br.  &  Col.  P.  C. 

102:  519. 


Gutenfels,  The,  L.  R.  [1916]  2  A. 

C.  112:  457. 

H 
Haabet,  The,  2  C.  Robinson,  174: 

687. 
Hagendorn  v.  Bell,  1  M.  &  S.  450: 

191. 
Hakan,  The,  L.  R.  [1916]  P.  266: 

701. 
Hakan,   The,  L.  R.    [1918]    A.   C. 

148:   693. 

Hales  v.  Petit,  Plowden,  261:  309. 
Hall  v.  Trussell,  Moore,  753:  520. 
Hallett  &  Browne  v.  Jenks,  3 

Cranch,  210:    660. 
Halley,  The,  L.  R.  2  P.  C.  193:  20. 
Halsey  v.  Lowenfeld   [1916]   2  K. 

B.  707:    472,  520. 

Hamborn,  The,  L.  R.  [1919]  A.  C. 

993:  447. 
Hampton,    The,   5    Wallace,    372: 

601. 
Hanametal,  The,  1  Br.  &  Col.   P. 

C.  347:   643. 

Handly's    Lessee    v.    Anthony,    5 

Wheaton,  374:  147. 
Hanger  v.  Abbott,  6  Wallace,  532: 

497,  521,  531. 
Hannabalson     v.      Sessions,     116 

Iowa,  437:  138. 
Harcourt  v.  Gaillard,  12  Wheaton, 

523:  53,  320,  325,  410. 
Harmony,  The,  2  C.  Robinson,  322: 

137,  411. 
Harral  v.  Harral,  39  N.  J.  Eq.  279: 

20. 
Hasenkamp,  The,  Entscheidungen, 

50,  577. 

Hastings  v.  Blake,  Noy,  1:  520. 
Hauenstein  v.  Lynham,  100  U.  S. 

483:  345. 
Haver   v.   Taker,   9   Wallace,   32: 

339. 

Hazard,  The,  9  Cranch,  205:  601. 
Head  Money  Cases,  112  U.  S.  580: 

345,  362. 
Heathfield   v.   Chilton,   4   Burrow, 

2015:   29,  31,  211,  229,  331. 
Heflebower  v.  United  States,  21  Ct. 

Cl.  228:  633. 


TABLE  OF  CASES. 


835 


Heiler  v.  Goodman's  Motor  Ex- 
press Van  &  Storage  Co.,  92  N. 
J.  Law,  415:  519. 

Helen,  The,  L.  R.  1  Ad.  &  Ecc.  1: 
802. 

Helena,  The,  4  C.  Robinson,  3: 
23,  S3. 

Hellfield  v.  Russian  Government, 
Am.  Jour.  Int.  Law,  V,  490:  211. 

Henfleld's  Case,  Wharton,  State 
Trials,  49:  32. 

Henkle  v.  Royal  Exchange  Assur- 
ance Co.,  1  Vesey,  Sr.  317:  476. 

Henrick  and  Maria,  The,  1  C.  Rob- 
inson, 146:  655,  659. 

Henrick  and  Maria,  The,  4  C.  Rob- 
inson, 43:  628. 

Herman,  The,  4  C.  Robinson,  228: 
429. 

Herstelder,  The,  1  C.  Robinson, 
114:  387. 

Hiawatha,  The,  2  Black,  635:  631. 

Hijo  v.  United  States,  194  U.  S. 
315:  533. 

Hilckes,  In  re,  L.  R.  [1917]  1  K. 
B.  48:  450. 

Hillerod,  The,  L.  R.  [1918]  A.  C. 
412:  701,  768. 

Hilton  v.  Guyot,  159  U.  S.  113:  21. 

Hiram,  The,  1  Wheaton,  440:  575. 

Hoare  v.  Allen,  2  Dallas  (Penn.), 
102;  521. 

Hoffnung,  The,  6  C.  Robinson,  112: 
668. 

Honduras  v.  Soto.  112  N.  Y.  310: 
211. 

Hoop,  The,  1  C.  Robinson,  196: 
459,  518,  601. 

Hooper,  Adm.  v.  United  States,  22 
Ct.  Cl.  408:  374,  630,  671,  681. 

Hope,  The,  1  Dodson,  226:   476. 

Hopkins  v.  De  Robeck,  3  T.  R.  79: 
221. 

Horlock  v.  Beal,  L.  R.  [1916]  1 
A.  C.  486:  496. 

Howard  v.  Ingersoll,  13  Howard, 
381:  147. 

Hudson  v.  Guestier,  6  Cranch, 
281:  171,  630. 


Hudson  v.  Guestier,  4  Cranch,  293: 

628. 
Hugh  Stevenson  d  Sons,  Ltd.  v. 

Aktiengesellschaft    fur    Carton- 

nagen-Industrie,  L.  R.   [1917]   1 

K.    B.    842:     481. 
Hullett  v.  King  of  Spain,  1  Dow. 

&  Clark,  169:  211. 
Hurtige  Hane,  The,  3  C.  Robinson, 

324:  23,  660. 
Husseine  v.  Weichers,  7  Sind  L. 

R.   329:    519. 
Hypatia,  The,  L.  R.  [1917]  P.  36: 

429. 


Ice  King,  The,   (Hamburg),  MS., 

259. 

Ida,  The,   Spinks,  26:   601. 
Imina,   The,  3  C.  Robinson,  167: 

675. 
Immanuel,    The,    2    C.    Robinson, 

186:    632. 
Imperial  Japanese  Government  v. 

P.  &  O.  Co.,  L.  R.   [1895]  A.  C. 

644:   155,  279,  433. 
Indiana   v.   Kentucky,   136   U.    S. 

479:    147. 
Indian  Chief,  The,  3  C.  Robinson, 

12:   124,  137,  280,  414,  417,  431. 
Industrie,    The,    Takahashi,    732: 

643. 
Insulinde,  The,  Rev.  Gen.  de  Droit 

Int.,  XXII,  18  J.:   768. 
International,  The,  L.  R.  3  Ad.  & 

Ecc.,  321:   680,  823. 
Invincible,    The,    2    Gallison,    28: 

622. 
Ionian  Ships,  The,  2  Spinks,  Adm. 

&  Ecc.  212:  57,  60,  65. 
Iowa  v.  Illinois,  147  U.  S.  1:  141. 
Island  Belle,  The,  13  Fed.  Cases, 

168:    587. 

Itata,  The,  56  Fed.  505:  75. 
Itata,  The,   Moore,   Int.   Arb.  Ill, 

3067:    172,  787. 


Jacobus     Johannes,     The,     MS.: 
423. 


836 


TABLE  OF  CASES. 


Jally,  Case  of,  Ortolan,  Diplomatie 

de  la  Mer,  I,  455:   180. 
James  Cook,   The,  Edwards,  261: 

659,   660. 
Jane,  The  Schooner,  37  Ct.  Cl.  24: 

575. 
Jane  Palmer,  The,  270  Fed.  609: 

212. 
Jan  Frederick,  The,  5  C.  Robinson, 

128:    496,  593. 
Janson  v.  Driefontein  Consolidated 

Mines,   Lt.,   L.  R.    [1902]    A.   C. 

484:    441,   1,65,   491,   493,   506. 
Jassy,   The,   75   L.   J.   P.   D.   ft  A. 

93:  228,  253. 
Jecker  v.  Montgomery  t  18  Howard, 

110:    629,  767. 
Jemmy,  The,   4  C.  Robinson,  31: 

586,.  595. 
Jenkins  v.  Collard,  145  U.  S.  546: 

531. 
Jerusalem,   The,   2   Gallison,  191: 

19,  168. 

Jesus,   The,  Burrell,   164:    767. 
Johanna  Emilie,  The,  Spinks,  317: 

429,   700. 

Johanna  Tholen,  The,  6  C.  Robin- 
son, 72:    766. 
Johann  Christoph,  The,  Spinks,  60: 

595. 

Johann  Frederick,  The,  1  W.  Rob- 
inson, 35:  168. 
Johnson  v.  Browne,  205  U.  S.  309: 

357. 

Johnson  v.  Jones,  44  111.  142:  204. 
Johnson  and   Graham's  Lessee  v. 

Mclntosh,  8  Wheaton,  543:  281. 
Johnson    Lighterage    Co.    No.    24, 

231  Fed.  365:  260. 
Johnstone  v.  Pedlar,  L.  R.  [1921] 

2  A.  C.  262:  -135. 
Jones  v.   Garcia  Del  Rio,  Tur.  & 

Rus.  297:   57. 
Jones  v.  McMasters,  20  Howard,  8: 

324. 
Jones  v.  Soulard,  24  Howard,  41: 

147. 
Jones  v.  United  States,  137  U.  S. 

202:    286. 


Jones  v.  Walker,  2  Paine,  688: 
406. 

Jonge  Klassima,  The,  5  C.  Robin- 
son, 297:  429,  457. 

Jonge  Margaretha,  The,  1  C.  Rob- 
inson, 189:  672,  680. 

Jonge  Pieter,  The,  4  C.  Robinson, 
79:  474,  658,  767. 

Jonge  Thomas,  The,  3  C.  Robin- 
son, 233».:  637. 

Jonge  Tobias,  The,  1  C.  Robinson, 
329:  680,  700. 

Josephine,  The,  3  Wallace,  83: 
660. 

Juffrow  Catharina,  5  C.  Robinson, 
141:  431,  474. 

Juffrow  Maria  Schroeder,  The,  3 
C.  Robinson,  147:  671. 

Julia,  The,  8  Cranch,  181:    575. 

Juno,  The,  1  Br.  &  Col.  P.  C.  151: 
575: 

Juno,  The  Brig,  38  Ct.  Cl.  465: 
680. 

Juragua  Iron  Co.  v.  United  States, 
212  U.  S.  297:  457,  526. 

Juriady,  The,  Takahashi,  591: 
431. 

K 

Kaipara,     The,      Entscheidungen, 

288:   577. 
Katwijk,  The,  L.  R.  [1916]  P.  177: 

680. 

Keith  v.  Clark,  97  U.  S.  454:   78. 
Kennett  v.  Chambers,  14  Howard, 

38:    57,  794. 
Kensington  v.  Inglis,  8  East,  273: 

476. 
Keokuk  &  Hamilton  Bridge  Co.  v. 

Illinois,  175  U.  S.  626:  147. 
Ker  v.  Illinois,  119  U.  S.  436:  357. 
Kershaw  v.  Kelsey,  100  Mass.  561: 

1,63,   474. 

Kessler  v.  Best,  121  Fed.  439:  231. 
Kiew,  The,  Entscheidungen,  241: 

769. 
Kim,   The,   L.   R.    [1915]    P.   215: 

735,  764. 
King,  The  v.  The  Earl  of  Crewe, 

L.  R.  [1910]  2  K.  B.  576:   59. 


TABLE  OF  CASES. 


837 


King,  The  v.  Superintendent  of 
Vine  Street  Police  Station,  L. 
R.  [1916]  1  K.  B.  268:  394,  397. 

King,  The  v.  The  Ship  North,  11 
Exc.  Court  of  Canada,  141:  172. 

King  Arthur,  The,  Takahashi, 
721:  671. 

King  of  Prussia  v.  Kuepper,  22 
Mo.  550:  211. 

King  of  Spain,  v.  Hullett,  1  C.  & 
F.  333:  211. 

King  of  Spain  v.  Oliver,  2  Wash- 
ington, C.  C.  429:  76. 

Kingdom  of  Roumania  v.  Guar- 
anty Trust  Co.,  250  Fed.  341: 
212. 

Knox  v.  Lee,  12  Wallace,  457:  110. 

Kronprinsessen  Margareta,  The,  L. 
R.  [1921]  1  A.  C.  486:  595,  681. 

Kronsprins  Gustaf,  The,  L.  R. 
[1919]  P.  182:  680. 

Kronprinzessin  Victoria,  L.  R. 
[1919]  A.  C.  261:  765. 


La  Bella  Scutarina,  Gazzetta  Uf- 

ficiale,  May  15,  1916:  643. 
La    Gloire,    5    C.    Robinson,    192: 

605. 
Lamar,    Exec.    v.    Browne,    92   U. 

S.  187:  528. 

L' Anemone,  Snow,  Cases,  124:  94. 
La  Ninfa,  The,  75  Fed.  513:  359. 
La   Rosine,   The,    2    C.    Robinson, 

372:    605. 
Lascelles    v.    Georgia,    148    U.    S. 

537:   357. 

Latham  v.  Clark,  25  Ark.  574:  74. 
Lau  Ow  Bew  v.  United  States,  144 

U.    S.   47:    135. 
La  Virginie,  The,  5  C.  Robinson, 

98:   431. 
Le  Caux  v.  Eden,  2  Douglas,  594: 

629. 

Leitensdorfer   v.   Webb,    20    How- 
ard, 176:  203,  320,  324. 
Le  Louis,  2  Dodson,  210:   32,  171, 

575. 
Lemkuhl  v.  Kock,  Transvaal  L.  R. 

[1903]   T.  S.  451:    296. 


Leonora,  The,  L.  R.  [1918]  P.  182: 

722. 
Leonora,  The,  L.  R.   [1919]  A.  C. 

974:  113. 
Liesbet  van   den   Toll,  The,   5   C. 

Robinson,  283: '604. 
Lilla,  The,  2  Sprague,  177:  75,  786. 
Linaria,  The,  31  T.  L.  R.  396:  601. 
Lindo  v.  Rodney,  2  Douglas,  612: 

616,  618,  621. 
L'Invincible,  The,  1  Wheaton,  238 : 

260,  628,  787. 
Lisette,  The,  6  C.  Robinson,  387: 

660,  767. 
Little  v.  Barreme,  2  Cranch,  168: 

203. 
Little  William,  The,  1  Acton,  141: 

660. 
Livingston  v.  Maryland  Insurance 

Co.,  7  Cranch,  506:   430. 
Lola,  The  175  U.  S.  677:   602. 
Lomonosoff,  The,  L.  R.   [1921]  P. 

97:  56. 
Lone  Wolf  v.  Hitchcock,  187  U.  S. 

553:  42. 
Los  Angeles  Farming  and  Milling 

Co.   v.   Los  Angeles,   217   U.   S. 

217:     319. 
Lottawanna,  The,  21  Wallace,  558: 

20. 
Louisiana  v.  Mississippi,  202  U.  S. 

1:  140,  147,  288. 
Louisiana,  The,  L.  R.  [1918]  A.  C. 

461:  754. 
Lucy,   The  Brig,  39   Ct.   Cl.   221: 

701. 
Luke  v.  Calhoun  County,  52  Ala. 

115:   135. 
Lupus,  The,  Entscheidungen,  377: 

769. 

Lusitania,  The,  251  Fed.  715:  561. 
Liitzow,  The,  1  Br.  &  Col.   P.  C. 

528:   137. 
Liitzow,  (No.  4),  The,  2  Br.  &  Col. 

P.  C.  122:   429,  431,  474. 
Liitzow,   The,  L.  R.   [1918]   A,  C. 

435:  430. 

Lucy  H.,  The,  235  Fed.  610:  813. 
Lynchburg,    The,    Blatchford,    3: 

601. 


838 


TABLE  OF  CASES. 


M 
Macartney   r.    Garbutt,    24    Q.   B. 

368:   230. 
Mac  Leod  v.  United  States,  229  U. 

S.  416:  83,  197. 

Madonna  del  Burso,  The,  4  C.  Rob- 
inson, 169:    23. 
Magdalena  Steam  Navigation  Co. 

v.  Martin,  2  E.  &  E.  94:  212,  219, 

225,  226. 
Mager  v.  Grima,  8  Howard,  490: 

135. 

Mahler  v.  Norwich  &  N.  Y  Trans- 
portation Co.,  35  N.  Y.  352:  156. 
Mahoney  v.  United  States,  10  Wal- 
lace, 62:  107. 
Mahrousseh,    The,    D6cisions    du 

Conseil  des  Prises,  I,  94:  387. 
Maipo,  The,  252  Fed.  627:  259. 
Maisonnaire  v.  Keating,  2  Gallison, 

325:   32. 
Maley  v.  Shattuck,  3  Cranch,  458: 

575. 
Maltass   v.    Maltass,    1   Rob.   Ecc. 

67:  125. 
Manchester  v.  Massachusetts,  139 

U.  S.  240:   156. 
Manchuria,  The,  2  Hurst  &  Bray, 

52:    458. 
Manila  Prize  Cases,  188  U.  S.  254: 

627,  630. 

Manilla,  The,  Edwards,  1:  190. 
Manningtry,  The,  1  Br.  &  Col.  P. 

C.  497:    474. 
Manouba,  The,  Scott,  The  Hague 

Court  Reports,  341:  Wilson,  The 

Hague   Arbitration   Cases,   326: 

643. 
Maracaibo,  The,  2  Br.  &  Col.  P.  C. 

294:  701. 
Marais    v.    Attorney    General     of 

Natal,   Ex   parte    Marais,   L.   R. 

[1902]  A.  C.  109:  204,  532. 
Margaret,  The,  1  Acton,  333:   692. 
Maria,   The,   1   C.  Robinson,   340: 

32,  5S5,  552,  680. 
Maria,  The,  5   C.   Robinson,  365: 

766. 
Maria,   The,  6   C.  Robinson,   201: 

767. 


Marianna,  The,  6  C.  Robinson,  24: 

601. 
Marianna  Flora,  The,  11  Wheaton, 

1:   160,  575. 
Marie  Glaeser,  The,  L.  R.   [1914] 

P.  218:    458,   601. 
Marie  Leonhardt,  The,  L.  R.  [1921] 

P.  1:  532. 
Marie  Magdalena,  The,  H.   &  M. 

247:  386. 
Marquis     de     Somerueles,      The, 

Stewart     (Nova     Scotia),    445: 

603. 
Marry att  v.  Wilson,  1  B.  &  P.  430: 

345. 
Martin  T.  Waddell,  1C  Peters,  367: 

285. 
Mary,   The,   5   C.   Robinson,   200: 

605. 
Mary,  Duchess  of  Sutherland,  In 

re,  31  T.  L.  R.  248:  430. 
Mary  and  Susan,  The,  1  Wheaton, 

25:  601. 
Maryland   v.    West    Virginia,    217 

U.  S.  1:  286. 
Mashona,  The,  17  Buchanan   (So. 

Africa),  135:   474,  767. 
Mason  v.  Ship  Blaireau,  2  Cranch, 

240:  167. 
Mason  v.  Intercolonial  Railway  of 

Canada,  197  Mass.  349:  2,50. 
Masterson  v.  Howard,  18  Wallace, 

99:   520. 
Matchless,  The,  1  Hagg.  Adm.  97: 

429,  767. 
Mather  v.  Cunningham,  105  Maine, 

326:   132,  137. 
Matthews  v.  McStea,  91  U.  S.  7: 

496. 

Mauran  v.  Insurance  Co.,  6  Wal- 
lace,  1:    70. 
Mayer   v.   Garvan,    270   Fed.    229 

495. 
McBaine  v.  Johnson,  155  Mo.  191 : 

147. 
M'Call  v.  Marine  Insurance  Co.,  8 

Cranch,  59:    659. 
M'llvaine     v.     Coxe's     Lessee,    -4. 

Cranch,  209:  53,  75,  410. 


TABLE  OF  CASES. 


839 


McKennon  v.  Winn,   1   Ok.   327: 

319. 
McLeod    v.    Attorney    General    of 

New  South  Wales,  L.  R.  [1891] 

A.  C.  455:   136. 

McVeigh  v.  United  States,  11  Wal- 
lace, 259:  514,  520. 

Memphis,  The,  Blatchford,  20"2: 
577. 

Mentor,  The,  Edwards,   207:    575. 

Mercurius,  The,  1  C.  Robinson, 
80:  630,  660,  664,  666,  767. 

Mercurius,   The,    1   Edwards,    53: 

Merryman  v.  Bourne,  9  Wallace, 
592:  319. 

Messicano,  The,  32  T.  L.  R.  519: 
258,  260. 

Meunier,  In  re,  L.  R.  [1894]  2  Q. 

B.  415:   356. 

Michael,  The,  2  Hurst  &  Bray,  80: 

604. 
Michael,  The,  2  Hurst  &  Bray,  82: 

155. 
Mighell  v.  Sultan  of  Johore,  L.  R. 

[1894]  1  Q.  B.  149:   55,  57,  205. 
Milford,  The,  1  Swabey,  362:  183. 
Miller  v.   United   States,   11  Wal- 
lace, 268:    528,  533. 
Milligan,  Ex  parte,  4  Wallace,  2: 

204. 
Milliken  v.  Pratt,  125  Mass.  374: 

118. 
Minerva,  The,  6  C.  Robinson,  396: 

595. 
Mines  of  Barbary  v.  Raymond,  44 

Clunet,  226:  449. 
Minnesota  v.  Wisconsin,  252  U.  S. 

273:  147. 
Minotto  v.  Bradley,  252  Fed.  600: 

398. 
Miramichi,   The,  L.  R.   [1915]   P. 

71:   554,  557,  601. 
Missouri    v.    Holland,    252    U.    S. 

416:   345. 
Missouri   v.   Nebraska,   196   U.   S. 

23:   145,  148. 
Mitchell  v.  Harmony,  13  Howard, 

115:  203,  532. 
Mitchell  v.  United  States,  9  Peters, 

711:  324. 


Mitchell  v.  United  States,  21  Wal- 
lace, 350:  429. 
Mjolner,      The,      Entscheidungen, 

421:   769. 
Molina    v.    Comision    Reguladora 

del    Mercado    de    Henequen,    92 

N.  J.  Law,  38:  57,  75. 
Montara,  The,  2  Hurst  and  Bray, 

403:  578. 
Montgomery     v.     Hernandez,     12 

Wheaton,  129:  501. 
Montgomery  v.  United  States,  15 

Wallace,  395:   74. 
Moravia,    The,    Gazzetta   Ufficiale, 

Jan.  29,  1917:   576,  601. 
More  v.  Steinbach,  127  U.  S.  70: 

319,   320,    325. 
Morgan  v.  Reading,  3  Sm.  &  Marsh 

(Miss.),  366:    147. 
Mortara,    The,     Takahashi,     633: 

636. 
Mortensen  v.  Peters,  14  Scots,  L. 

T.  R.  227:   29,  151. 
Mortimer  v.   New  York  Elevated 

Ry.,  6  N.  Y.  Supp.  898:  286,  319. 
Mrs.   Alexander's   Cotton,   2   Wal- 
lace, 404:    429,  531. 
Mowe,    The,   L.    R.    [1915]    P.    1: 

520,  532. 
Mukden,    cargo    ex.,    2    Hurst    & 

Bray,  25:   429. 
Muller  v.  Thompson,  2  Campbell, 

609:    468. 
Munden  v.  Duke  of  Brunswick,  10 

Q.   B.   656:    212. 
Murphy  v.  Bolger  Brothers,  60  Vt. 

723:  138. 
Murray  v.  The  Charming  Betsey, 

2  Cranch,  64:  32. 
Murray  v.  Vanderbilt,  39  Barbour 

(N.  Y.),  140:  75. 
Murry  v.   Sermon,   1   Hawks    (N. 

C.),  56:  148. 
Musgrove  v.  Chun  Teong  Toy,  60 

L.  J.  P.  C.  28:  134. 
Musurus    Bey    v.    Gadban,    L.    R. 

[1894]   2  Q.  B.  352:    225,  230. 


840 


TABLE  OF  CASES. 


N 
Nabob  of  Carnatic  v.  East  India 

Co.,  1  Ves.  Jr.   371,   2  Ves.   Jr. 

55:  305. 

Nancy,  The,  MS.:  423. 
Nancy,  The,  3  C.  Robinson,  122: 

701. 

Nancy,  The,  1  Acton,  57:  668. 
Nancy,  The,  1  Acton,  63:  668,  671. 
Nancy,    The,   27    Ct.    Cl.    99:    575. 
Nassau,  The,  4  Wallace,  634:   629. 
Nayade,.The,  4  C.  Robinson,  251: 

388. 
Naylor,    Benzon    &    Co.    Ltd.    v. 

Krainische      Industrie      Gesell- 

schaft,  L.  R.  [1918]  1  K.  B.  331: 

496. 
Nebraska  v.  Iowa,  143  U.  S.  359: 

145,  147. 
Neely  v.   Henkel,   180  U.   S.  109: 

48. 
Neilson  v.  Rhine   Steamship   Co., 

248  U.  S^ffe:  183. 
Neptune,  The,  3  Hagg,  129:  32. 
Neptunus,  The,  1  C.  Robinson,  170: 

664. 
Neptunus,    The,    2    C.    Robinson, 

110:   646,  659,  665. 
Neptunus,    The,    3    C.    Robinson, 

108:  680. 
Neptunus,    The,    6    C.    Robinson, 

403:  474. 
Nereide,   The,  9  Cranch,  388:   32, 

544,    576. 
Nesbitt  v.  Lushington,  4  T.  R.  783: 

70. 
Neutralttet,    The,   3    C.   Robinson, 

295:  660,  686,  691,  696. 
Newbattle,  The,  10  P.  D.  33:   211. 
New    Chile    Gold    Mining    Co.    v. 

Blanco,  4  T.  L.  R.  346:  230. 
Newfoundland,  The,  176  U.  S.  97: 

659. 
Newman,    Ex    parte,    14   Wallace, 

152:  182. 

New    Orleans    v.    The    Steamship 

Co.,   20  Wallace,   387:    194,   203. 

New  Orleans  v.  United  States,  10 


Peters,  662:    147,  319. 
New    Sweden,   The,   126  L.   T.   R. 

31:    577. 
New  York  Life  Insurance   Co.  v. 

Davis,  95  U.  S.  425:  496. 
New  York   Life   Insurance  Co.  v. 

Statham,  93  U.  S.  24:  495,  496. 
Nielsen  v.  Oregon,  212  U.  S.  315: 

148. 
Nigel    Gold    Mining    Co.    Ltd.    v. 

Hoade,  L.  R.  [1901]  2  K.  B.  849: 

475,  496. 
Nigretia,     The,    Takahashi,    551: 

601,  643. 

Nina,  The,  Spinks,  276:   457. 
Nina,  The,  17  L.  T.  R.  585:   182. 
Nishimura  Eku  v.  United  States, 

142  U.  S.  651:   134. 
Noordam,  The,  L,  R.  [1919]  P.  57: 

762. 
Nordenfeldt      v.      Maxim-Norden- 

feldt  Guns  &  Ammunition  Co., 

[1894]  A.  C.  535:   507 
Nordman  v.  Rayner  and  Sturges, 

33  T.  L.  R.  87:  397. 
Nome,  The-,  L.  R.    [1921]  1  A.  C. 

765:   769. 

Norris  v.. Harris,  15  Cal.  226:  312. 
North    Atlantic    Coast    Fisheries 

Arbitration,    Scott,    The    Hague 

Court  Reports,  141;  Wilson,  The 

Hague   Arbitration   Cases,   134: 

156. 
Northern  Pacific  Ry.  v.  American 

Trading  Co.,  195  U.  S.  439:   823. 
Novello  v.  Toogood,  1  B.  &  C.  554: 

218. 
Nuestra    Senora    de    Regla,    The, 

108    U.    S.    92:    629. 
Nueva  Anna  and   Liebre,   The,   6 

Wheaton,  193:  75. 

O 

Oakes  v.  United  States,  174  U.  S. 

778:    74,  629. 
Ocean,   The,   3   C.  Robinson,   297: 

431,  658. 
Ocean,    The,    5    C.    Robinson,    90: 

431,  474. 


TABLE  OF  CASES. 


841 


Oceanic  Steam  Navigation  Co.  v. 

Stranahan,  214  U.  S.  320:   135. 
Odessa,  The,  L.  R.  [1916]  1  A.  C. 

145:   596,  628. 
Odin,   The,    1   C.    Robinson,    248: 

474. 
Oetjen  v.  Central  Leather  Co.,  246 

U.  S.  297:  57. 
O'Hara  v.  United  States,  15  Peters, 

274:   324. 
Olinde  Rodrigues,  The,  174  U.  S. 

510:  665. 
Olympia,   The,   Decisions  du   Con- 

seil   des   Prises,   173:    643. 
O'Mealey   v.  Wilson,   1   Campbell, 

482:   429. 
Omnibus,  The,  6  C.  Robinson,  71: 

586. 
Ophelia,  The,  L.  R.  [1915]  P.  129: 

700. 
Ophelia,  The,  L.  R.  [1916]  2  A.  C. 

206:  605. 
Orduna,   The,  1   Br.  &   Col.   P.   C. 

509:  431. 
O'Reilly  de  Camara  v.  Brooke,  209 

U.  S.  45:   325. 

Ornelas  v.  Ruiz,  161  U.  S.  502:  356. 
Oropa,  The,  255  Fed.  132:  519. 
Orozembo,    The,    6    C.    Robinson, 

430:   631. 
Orr  v.  Hodgson,  4  Wheaton,  453: 

399. 
Orteric,   The,   L.   R.    [1920]    A.   C. 

724:    576,  601. 

Ortiz,  Ex  parte,  100  Fed.  955:  203. 
Osprey,  The,  MS.:    423. 
Ostsee,  The,  9   Moore,  P.  C.  150: 

576. 
Osterman   v.  Baldwin,   6   Wallace, 

116:   320. 


Padgett    v.    Chothia,    18    Bombay, 

L.  R.  190:   521. 
Paklat,  The,  1  Br.  &  Col.  P.  C.  515: 

605. 
Panaghia  Rhomba,  The,  12  Moore, 

P.  C.  168:  659,  660. 
Panariellos,  The,  1  Br.  &  Col.  P. 

C.  195:   474. 


Papayanni  v.  Russian  Steam  Nav- 
igation and  Trading  Co.,  2 
Moore,  P.  C.  (N.  S.),  161:  261. 

Paquete  Habana,  The,  175  U.  S. 
677:  19,  32,  569,  602. 

Parchim,  The,  1  Br.  &  Col.  P.  C. 
579:  474. 

Parkinson  v.  Potter,  L.  R.  16  Q. 

B.  152:  216. 

Parlement  Beige,  The,  L.  R.  5  P. 

D.  197:    206,  210,  226,  24%,  252, 

255. 
Paterson  v.  Bark  Eudora,  190  U. 

S.  169:  135,  182. 
Peacock,  The,  4  C.  Robinson,  185: 

629. 

Pearl,  The,  19  Fed.  Cases,  54:  767. 
Pearson  v.  Parson,  108  Fed.  461: 

807. 
Pedro,  The,  175  U.  S.  354:  387, 

388,  449. 

Peggy,  The,  1  Cranch,  103:  301. 
Pelican,  The,  Edwards,  App.  D.: 

57. 
Pellworm,  The,  L.  R.   [1922]  1  A. 

C.  292:   576,  787. 

Penza,  The,  277  Fed.  91:  58. 

People  v.  Gerke,  5  Cal.  381:    345. 

People  v.  Savitch,  190  N.  Y.  Supp. 
759:  231. 

Pesaro,  The,  277  Fed.  473:  259. 

Peskovitch  v.  Western  Canada 
Flour  Mills  Co.  Ltd.,  24  Man- 
itoba, 763:  519. 

Peterhoff,  The,  5  Wallace,  28:  576, 
656,  677. 

Pettit  v.  Walshe,  194  U.  S.  205: 
357. 

Perkeo,  The,  1  Br.  &  Col.  P.  C. 
136:  576. 

Philadelphia  Co.  v.  Stimson,  223 
U.  S.  605:  147. 

Philippine  Sugar  Estates  Develop- 
ment Co.  Lt.  v.  United  States, 
39  Ct.  Cl.  225:  311. 

Phillips  v.  Eyre,  L.  R.  4  Q.  B.  225: 
118. 

Phillips  v.  Payne,  92  U.  S.  130: 
371,  778. 


842 


TABLE  OF  CASES. 


Phoenix,  The,  5  C.  Robinson,  20: 

451,  457. 

Phoenix,  The,  Spinks,  1:   532. 
Pickering   v.    Rudd,    4    Campbell, 

219:    137. 
Picton's  Case,  30  State  Trials,  226: 

320. 
Pizarro,    The,    2    Wheaton,    227: 

429,  576. 
Planters'  Bank  v.  Union  Bank,  16 

Wallace,  483:    531. 
Plettenburg,    Holthaus    &    Co.    v. 

Kalmon,  241  Fed.  605:   519. 
Polka,  The,  Spinks,  57:  628. 
Pollard  v.  Bell,  8  T.  R.  434:  15. 
Pollard  v.  Hagan,  3  Howard,  212: 

319. 
Polly,   The,    2    C.   Robinson,   361: 

766. 
Polzeath,    The,    L.    R.     [1916]    P. 

241:   458. 
Pontoporos,  The,  1  Br.  &  Col.  P. 

C.  371:   643. 
Poona,  The,  1  Br.  &  Col.  P.  C.  275: 

449. 
Porter     v.     Freudenberg,     L.     R. 

[1915]    1   K.    B.    857:    392,   512, 

518. 
Portland,  The,  3  C.  Robinson,  41: 

430. 
Porto     Alexandre,     The,     L.     R. 

[1920]   P.  30:   25S,  257,  260. 
Porto  Rico  v.    Ramos,    232    U.    S. 

627:  211 
Posselt  v.  D'Espard,  87  N.  J.  Eq. 

571:  516. 
Postilion,    The,   Hay    &    Marriott,  • 

245:   430. 
Potts   v.   Bell,   8   T.   R.   548:    474, 

476. 
President,    The,    5    C.    Robinson, 

277:   231. 
Primavera,   The,   Entscheidungen, 

194:    627. 
Princessa,  The,  2  C.  Robinson,  49: 

637. 
Princess  of   Thurn  and   Taxis  v. 

Moffitt,  L.  R.    [1915]    1  Ch.   58: 

392,  518. 


Prins    Prederik,    2    Dodson,    451: 

247. 

Prins   Hendrick,    The,    Entscheid- 
ungen, 321:    628. 
Prize   Cases,    The,    2    Black,   635: 

74,  378,  454,  533,  626,  659. 
Prometheus,  The,  2  Hong-Kong  L. 

R.  217:  11. 
Protector,   The,   12  Wallace,   700: 

387,  521. 
Proton,   The,   2  Br.   &   Col.  P.   C. 

107:  458,  643. 
Purissima   Conception,   The,   6   C. 

Robinson,  45:   786. 
Puoroto  v.  Chieppa,  78  Conn.  401: 

138. 

Q 

Quang-nam,  The,  Takahashi,  735: 

643. 
Queen,  The  v.  Carr,  10  Q.  B.  D.  76: 

183. 
Queen,  The  v.  Delepine,  3  Morris, 

378:    156. 
Queen,  The  v.  Keyn,  L.  R.  2  Ex. 

Div.  63:    155,  171,  181. 
Queen,  The  v.  The  Chesapeake,  1 

Oldright     (Nova    Scotia),    797: 

787. 

R 
Race  Horse,  The,  3  C.  Robinson, 

101:  629. 
Railroad  Commission  of  Louisiana 

v.  Texas  &  Pacific  Ry.,  229  U.  S. 

336:    770. 
Rainey  v.  United  States,  232  U.  S. 

310:    345. 
Ralph,  The  Sloop,  39  Ct.  Cl.  204: 

682,  701. 
Ramsden  v.  Macdonald,  1  Wilson, 

217:     520. 
Ranger,  The,  6  C.  Robinson,  125: 

700. 
Rannveig,    The,   L.   R.    [1920]    P. 

177:    578. 

Rapid,  The,  Edwards,  228:  643. 
Rapid,  The,  1  Gallison,  295:  493. 
Rapid,  The,  8  Cranch,  155:  475. 
Rapid,  The,  Spinks,  80:  595. 


TABLE  OF  CASES. 


843 


Rebeckah,    The,    1    C.    Robinson, 

227:    558. 
Recovery,  The,  6  C.  Robinson,  341: 

32. 
Regina  v.  Anderson,  11  Cox,  C.  C. 

198:    172,  183. 
Regina      v.      Cunningham,      Bell, 

Crown  Cases,  72:    156,183. 
Regina  v.  Jameson,  L.  R.    [1896] 

2  Q.  B.  425:    823. 
Regina  v.  Sandoval,  56  L.  T.  526: 

823. 
Rendsborg,   The,    4    C.    Robinson, 

121:     637. 
Rensalaer,  The  Brig,  49  Ct.  Cl.  1: 

680. 
Republic    of   Bolivia    Exploration 

Syndicate,    Ltd.,    In   re,    L.    R. 

[1914]  1  Ch.  139:    220. 
Republic  of  El  Salvador  v.  Repub- 
lic of  Guatemala,  Am.  Jour.  Int. 

Law,  XI,  674:   156. 
Republic  of  Peru  v.  Dreyfus,  L.  R. 

38  Ch.  Div.  348:    57,  82,  83. 
Republic    of    Peru    v.     Peruvian 

Guano  Co.,  36  Ch.  D.  489:    107. 
Respublica  v.  De   Longchamps,   1 

Dallas  (Penn.),  Ill:    31,  230. 
Rex  v.  Ahlers,  L.  R.   [1915]   1  K. 

B.  616:    231. 
Rex  v.  Allen,  1  Moore,  C.  C.  494: 

175. 

Rex  v.  Jemot,  MS.:    175. 
Rex  v.  Lynch,  L.  R.  [1903]  1  K.  B. 

444:    136. 

Rex  v.  Sawyer,  2  C.  &  K.  101:  119. 
Richardson  v.  Fajardo  Sugar  Co. 

241  U.  S.  44:    211. 
Richardson  v.  The  Marine  Insur- 
ance Co.,  6  Mass.  102:    805. 
Richmond,    The,    5    C.    Robinson, 

325:    680. 
Riddell  v.  Fuhrman,  233  Mass.  69: 

32. 
Rijn,   The,   L.   R.    [1917]    P.   145: 

769. 

Ringende  Jacob,  The,  1  C.  Robin- 
son, 89:    680,  697,  700. 


Robert     Hunter     v.     The     Baron 

Count  de  Bothmer,  Morison,  De- 
cisions, 11957:    786. 
Roberts  v.  Hardy,  3  M.  &  S.  533: 

430. 

Robinson  &  Co.  v.  Continental  In- 
surance Co.  of  Mannheim,  L.  R. 

[1915]  1  K.  B.  155:    513,  520. 
Robson  v.   Premier  Oil   and  Pipe 

Line  Co.  Lt.,  113  L.  T.  Rep.  523: 

475. 
Rodriguez  v.  Speyer  Brothers,  L. 

R.   [1919]  A.  C.  59:    501. 
Rogdai,  The,  278  Fed.  294:    58. 
Roland,  The,   31  T.  L.  R.  357;    1 

Br.  &  Col.  P.  C.  188:    576,  630. 
Rolla,   The,   6   C.   Robinson,   364: 

651,  654,  659,  662. 
Rosalie  and  Betty,  The,  2  C.  Rob- 
inson, 343:    643. 
Rose  v.  Himeley,  4  Cranch,  241: 

57,  74,  171,  800. 
Rose,   The   Ship,   36   Ct.   Cl.   290: 

575. 
Rose  in  Bloom,  The,  1  Dodson,  57: 

605. 

Roseric,  The,  254  Fed.  154:    259. 
Rosita,  The,  Decisions  du  Conseil 

des  Prises,  171:    643. 
Ross,  In  re,  140  U.  S.  453:    263. 
Rossia,  The,  2  Hurst  &  Bray,  41: 

155. 
Rossie  v.  Garvan,   274   Fed.   447: 

496. 
Rostock,  The,  1  Br.  &  Col.  P.  C. 

523:    429. 
Rothersand,  The,  L.  R.   [1914]  P. 

251:    449,  458,  595. 
Rothschild  v.  Queen  of  Portugal, 

3  Y.  &  C.  594:    211. 
Roumanian,  The,  L.  R.   [1915]  P. 

26:    626. 
Roumanian,   The,  L.  R.   [1916]    1 

A.-C.  124:    556,  616. 
Russia,  The,  Takahashi,  557:   601. 
Russian  Socialist  Federated  Soviet 

Government  v.  Cibrario,  191  N. 

Y.  Supp.  543:    58. 
Rustumjee  v.  The  Queen,  1  Q.  B. 

D.  487,  2  Q.  B.  D.  69:    305. 


844 


TABLE' OF  CASES. 


S 
Sally,    The,    3    C.    Robinson,    300 

note:  539. 
Sally,  The   Brig,   50   Ct.   Cl.   129: 

681. 
Salomon  v.  Salomon,  L.  R.  [1897] 

A.  C.  22:    438. 
Salvador,  The,  L.  R.  3  P.  C.  218: 

71,  75,  823. 
Sandberg  v.  McDonald,  248  U.  S. 

185:    182. 
San  Jos6  Indiano,  The,  2  Gallison, 

268:    427,  430,  457. 
Santa  Anna,  The,  Edwards,  180: 

190. 
Santissima      Trinidad,      The,      1 

Wheaton,  283:    57,  74,  382,  783, 

788,  805,  810. 
Sapphire,    The,   11   Wallace,    164: 

76. 
Sarah,  The,  3   C.   Robinson,   330: 

576. 

Sarah  Christina,  The,  1  C.  Robin- 
son, 237:   700,  701. 
Savage,  Ex  parte,   South  African 

L.   R.    [1914]    C.    P.    D.   Part  I, 

827:    520. 
Savarkar,     Case    of,     Scott,     The 

Hague  Court  Reports,  275;  Wil- 
son,    The     Hague     Arbitration 

Cases,  230:    357. 
Schaffenius    v.     Goldberg     [1916] 

1  K.  B.  284:    892,  497. 
Scharrenberg  v.  Dollar  Steamship 

Co.  245  U.  S.  122:    181. 
Schlesien    (No.  2),  The,   2  Br.   & 

Col.  P.  C.  268:    576. 
Schulze,   Gow   &   Co.   v.    Bank  of 

Scotland,  (1914),  2  S.  L.  T.  455: 

519. 

Science,  The,  5  Wallace,  178:  631. 
Scotia,   The,   14   Wallace,   170:    5, 

20. 

Scotland   v.  South  African  Terri- 
tories, Lt.,  33  T.  L.  R.  255:  430. 
Sea  Nymph,  The,  36  Ct.  Cl.  369: 

575. 
Sea  Witch,  The,  6  Wallace,  242: 

659. 


Sechs  Geschwistern,  The,  4  C.  Rob- 
inson, 100:  586,  595,  601. 
Secretary    of    State    v.     Charles- 
worth,  L.  R.    [1901]   A.  C.  373: 

279. 
Secretary  of  State   in   Council  of 

India    v.    Kamachee    Boye    Sa- 

haba,   7  Moore,   Ind.   App.  476: 

305. 
Seligman  v.  Eagle  Insurance  Co. 

[1917]  1  Ch.  519:  411. 
Semmes  v.  Hartford  Insurance  Co., 

13  Wallace,  158:  496,  521. 
Seton,  Maitland  &   Co.  v.  Low,  1 

Johnson,  1:  753,  806. 
Seyerstadt,   The,    1    Dodson,    241: 

643. 
Shanks  v.  Dupont,  3  Peters,  242: 

203. 
Shively  v.  Bowlby,  152  U.   S.   1: 

286. 
Shortridge     v.     Macon,     22     Fed. 

Cases,  No:  12812:   74. 
Short     Staple,     Brig,     v.     United 

States,  9  Cranch,  55:  660. 
Sirdar  Gurdyal  Singh  v.  Rajah  of 

Faridkote,    L.    R.    [1894]    A.   C. 

670:  64. 
Sir  William  Peel,  The,  5  Wallace, 

517:  631,  786. 
Slater  v.  Mexican  National  R.  R. 

Co.,  194  U.  S.  120:  119. 
Slocum  v.  Mayberry,  2  Wheaton, 

1:  629. 

Smart  v.  Wolf,  3  T.  R.  323:  629. 
Smith  v.  Kelley,  23  Miss.  167:  20. 
Smith  v.  Maryland,  6  Cranch,  286: 

400. 

Snipe,    The,    Edwards,    380:    707. 
Societe  Anonyme  Beige  des  Mines 

d'Aljustrel  (Portugal)  v.  Anglo- 

Bejgian     Agency,     Lt.,     L.     R. 

[1915]  2  Ch.  409:  457. 
Societe,  The  Ship,  9  Cranch,  209: 

601. 
Society    for    the    Propagation    of 

the    Gospel    v.    New-Haven,    2 

Gallison,  105:    519. 


TABLE  OF  CASES. 


845 


Society  for  the  Propagation  of  the 

Gospel  v.  New-H-aven,  8  Wheaton, 

464:   398. 
Solveig,  The,  Journal  Official,  Nov. 

12,  1915:  458. 
Soulard  v.  United  States,  4  Peters, 

511:     324. 

Soglasie,  The,  Spinks,  104:  587. 
South  African  Republic  v.  La  Com- 

pagnie     Franco-Beige,     L.      R. 

[1898]  1  Ch.  190:  207. 
South  Carolina  v.  United   States, 

199  U.  S.  437:  258. 
Southern   Rhodesia,   In   re,  L.   R. 

[1919]  A.  C.  211:  296. 
Sparenburgh   v.   Bannatyne,  1   B. 

&  P.   163:    394. 
Kouthfield,  The,  1  Br.  &  Col.  P.  C. 

332:   588. 
Speidel    v.    N.    Barstow    Co.,    243 

Fed.   621:    519. 

Spes,  The,  5  C.  Robinson,  76:  660. 
Springbok,    The,    5    Wallace,    1: 

631,   72.9. 
St.  Catherine's  Milling  &  Lumber 

Co.  v.  The  Queen,  L.   R.  14  A. 

C.  46:   42. 

St.  Croix,  The,  Burrell,  228:    766. 
St.   Helena,   The,   L.   R.    [1916]    2 

A.  C.  625:   629. 

St.  Ivan,  The,  Edwards,  376:   630. 
St.  Joseph  &  G.   I.  Ry.  v.  Dever- 

eaux,  41  Fed.  14:   147. 
St.  Juan  Baptista,  The,  5  C.  Rob- 
inson, 33:    629. 
St.  Lawrence,  The,  9  Cranch,  120: 

431. 
St.  Louis  v.  Rutz,  138  U.  S.  226: 

148. 
St.  Louis  &  San  Francisco  Ry.  v. 

James,  161  U.  S.  545:   441. 
St.    Nicholas,    The,    1    Wheaton, 

417:    576,  693. 
St.   Tndno,   The,  L.   R.    [1916]    P. 

291:  450,  458. 
Star,    The,    Entscheidungen,    66: 

577. 

Staadt  Embden,  The,  1  C   Robin- 
son, 26:  680,  700. 


Stahlwerk  Becker,  &c.   Patent,  L. 

R.  [1917],  2  Ch.  272:   521. 
Stanley    v.    Schwalby,    147    U.    S. 

508:    258. 

State  v.  Covell,  103  Kan.  754:  398. 
State  of  Yucatan  v.  Argumedo,  92 

N.  Y.  Misc.  547:    75,  82, 
Statham    v.     Statham     and     The 

Gaekwar     of     Baroda,     L.     R. 

[1912]   P.  92:   61. 
Stephen    Hart,    The,     Blatchford, 

387:  577,  767. 
Stern  &  Co.  v.  De  Waal,  So.  Af. 

L.  R.  [1915]  Transvaal,  60:  519. 
Stert,    The,    4    C.    Robinson,    65: 

658. 
Stevens  v.  Bagwell,  15  Vesey,  Jr., 

139:    629. 
Stigstad,  The,  L.  R.   [1919]  A.  C. 

279:    708,  714. 
Stoehr  v.  Wallace,  255  U.  S.  239: 

532. 
Stovall,   Administrator   v.   United 

States,  26  Ct.  Cl.  226:   74. 
Strathearn   Steamship  Co.  v.  Dil- 
lon, 252  U.  S.  348:   183. 
Strother  v.  Lucas,  12  Peters,  410: 

320,  324. 
Strousberg   v.   Republic   of   Costa 

Rica,  44  L.  T.  199:  209. 
Stumpf  v.  Schreiber  Brewing  Co., 

242  Fed.  80:  519. 
Styria,  The  v.  Morgan,  186  U.  S. 

1:    680. 
Suarez,  In  re,  L.  R.  [1917]  2  Ch. 

131:   230. 
Siidmark     (No.    2),    The,    L.    R. 

[1918]  A.  C.  475:  788. 
Success,  The,  1  Dodson,  131:   219, 

388,  651. 
Sullivan  v.  Kidd,  245  U.  S.  433: 

345. 
Susanna,  The,  6  C.  Robinson,  48: 

629. 
Sussex  Peerage,  The,  11  Cl.  &  Fin. 

85:    118. 
Sutton  v.  Button,  1  R.  &  M.  663: 

410. 
Svithiod,  The,  L.  R.   [1920]   A.  C. 

718:    643. 


846 


TABLE  OF  CASES. 


Swayne    &    Hoyt    v.    Everett,    255 

Fed.  71:  279. 
Sylvester's  Case,  7   Modern,   150: 

396. 


Talbot  r.   Jansen,   3   Dallas,   133: 

260. 
Talbot   v.   Seaman,   1   Cranch,   1: 

388. 
Tameling  v.   U.   S.   Freehold   Co., 

93  U.  S.  644:  324. 
Tamplin  S.  S.  Co.  v.  Anglo-Mexi- 
can    Petroleum     Products     Co., 

L.  R.  [1916]  2  A.  C.  397:   496. 
Taylor    v.    Barclay,    2    Sim.    213: 

57. 
Taylor  v.  Best,  14  C.  B.  487:   214, 

219,   221,   230,   254. 
Taylor  v.  Morton,  2  Curtis,  454: 

346. 

Taylor,  In  re,  118  Fed.  196:    107. 
Techt  v.  Hughes,  229  N.  Y.  222: 

345,  405. 
Ten  Bales  of  Silk  at  Port  Said,  2 

Br.  &  Col.  P.  C.  247:    627. 
Terlinden  v.  Ames,  184  U.  S.  270: 

92,  343. 
Tervaete,   The,   38   T.   L.  R.   825: 

261. 
Teutonia,  The,  8  Moore,  P.  C.   (N. 

S.),  411,  L.  R.  4  P.  C.  171:   386, 

388,  495. 

Thalia,  The,  Takahashi,  605:   627. 
Theresa  Bonita,  The,  4  C.  Robin- 
son, 236:   377. 
Thirty  Hogsheads  of  Sugar,  Bent- 

zon,      Claimant     v.     Boyle,     9 

Cranch,  191:    10,   18,  450. 
Thomas   v.    Lane,    2    Sumner,    1: 

176. 
Thomas,    In    re,    12    Blatchford, 

370:    342. 
Thompson  v.  Barclay,  6  L.  J.  (O. 

S).  Ch.  93:  57,  823. 
Thompson  T.  &  W.  Association  v. 

McGregor,  207  Fed.  209:  183. 
Thomyris,      The,     Edwards,      17: 

767. 


Thor,  The,  1  Br.  &  Col.  P.  C.  229: 
643. 

Thorington  v.  Smith,  8  Wallace,  1: 
43,  201. 

Three  Friends,  The,  166  U.  S.  1: 
57,  66,  817,  818. 

Tiaco   v.   Forbes,   228   U.   S.   549: 
134. 

Tingley   v.   Miiller,   L.   R.    [1917] 
2  Ch.  144:  431,  496. 

Tobago,  The,  5  C.  Robinson,  218: 
600,  601. 

Tommi,  The,  L,  R.  [1914]  P.  251: 
449,  458,  595. 

Tootal's  Trusts,  In  re,  23  Ch.  Div. 
532:   126,  137. 

Topsy,  The,  44  Fed.  631:    182. 

Townsend  v.   Greeley,   5  Wallace, 
326:   319. 

Tredegar  Hall,  The,  1  Br.  &  Col. 
P.  C.  492:   575. 

Triquet  v.  Bath,  3  Burrow,  1478: 
9,  29,  31,  221,  229. 

Tubantia,   The,  32   L.  T.  R.  529: 
579. 

Tucker  v.  Alexandroff,  183  U.  S. 
424:   260. 

Turkish   Moneys   Taken    at   Mud- 
ros,  2  Br.  &  Col.  P.  C.  338:   680. 

Turul,    The,    L.    R.    [1919]    A.    C. 
515:    532. 

Twee  Gelroeders,  The,  3  C.  Rob- 
inson, 162:    111,   787. 

Twee  Gebroeders,  The,  3  C.  Rob- 
inson, 336:  148,  153. 

Twee  Juffrowen,  The,  4  C.  Robin- 
son, 242:  680. 

Twende  Brodre,  The,  4  C.  Robin- 
son, 33:   680,  767. 

Two  Brothers,  The,  1  C.  Robinson, 
131:   429. 

Two  Friends,  The,  1  C.  Robinson, 
271:    167. 

U 
Udny  v.  Udny,  L.  R.  1  H.  L.  441: 

137. 
Underbill  v.  Hernandez,  168  U.  S. 

250:   57,  74,  75. 


TABLE  OF  CASES. 


847 


United  States,  The,  L.  R.   [1917] 

P.  30:    457. 
United  States,  The,  L.  R.   [1920] 

P.  431:    577. 
United     States    v.    Arredondo,    6 

Peters,  691:  324. 
United   States  v.  Assia,  118   Fed. 

915:   65. 
United     States    v.     Auguisola,     1 

Wallace,  352:    324. 
United   States  v.   Baker,   24   Fed. 

Cases,  962:    57. 
United  States  v.  Bull,  15  Phil.  7: 

181. 
United  States  v.  Clarke,  8  Peters, 

436:    324. 
United     States     v.     Coombes,     12 

Peters,  71:  176. 
United     States     v.     Deveaux,     5 

Cranch,  61:  441. 
United    States    v.    Diekelman,    92 

U.   S.    520:    181,   203,  680. 
United  States  v.  Dunnington,  146 

U.   S.   338:    531. 

United  States  v.  Farragut,  22  Wal- 
lace, 406:    457,  533. 
United      States     v.     Furlong,     5 

Wheaton,  184:   183. 
United    States    v.    Grossmayer,    9 

Wallace,  72:   496. 
United  States  v.  Crush,  5  Mason, 

290:    153. 
United   States  v.  Hallock,  154  U. 

S.  537:    659. 
United  States  v.  Hand,  Fed.  Cases, 

No.  15297:   230. 
United  States  v.  Hayward,  2  Galli- 

son,  485:  289. 
United    States    v.    Huckabee,    16 

Wallace,  414:  203. 
United  States  v.  Home  Insurance 

Companies,  22  Wallace,  99:    83. 
United  States  v.  Kagama,  118  U. 

S.  375:    42. 
United     States     v.     Klintock,     5 

Wheaton,  144:    74. 
United  States  v.  Lapene,  17  Wal- 
lace, 601:    74. 

United   States  v.  Liddle,  2  Wash- 
ington C.  C.  205:    230,  332. 


United  States  v.  McRae,  L.  R.  8 
Eq.  69:  83,  87. 

United  States  v.  Mereno,  1  Wal- 
lace, 400:  324. 

United  States  v.  Miranda,  16 
Peters,  153:  325. 

United  States  v.  Nice,  241  U.  S. 
591:  42. 

United  States  v.  One  Hundred 
Barrels  of  Cement,  27  Fed. 
Cases,  No.  15945:  476. 

United  States  v.  Pacific  Railroad, 
120  U.  S.  227:  74,  529. 

United  States  v.  Palmer,  3  Wheat- 
on, 610:  57,  74. 

United  States  v.  Felly,  4  Commer- 
cial Cases,  100:  S84,  821. 

United  States  v.  Percheman,  1 
Peters,  51:  320. 

United  States  v.  Planters'  Bank, 
9  Wheaton,  904:  258. 

United  States  v.  Prioleau,  35  L.  J. 
Ch.,  (N.  S.)  7:  83,  84,  211,  212. 

United  States  v.  Quincy,  6  Peters, 
445:  69,  823. 

United  States  v.  Rauscher,  119  U. 
S.  407:  S46. 

United  States  v.  Ravara,  2  Dallas, 
297:  231. 

United  States  v.  Reiter,  27  Fed. 
Cases,  No.  16146:  203. 

United  States  v.  Repentigny,  5 
Wallace,  211:  53,  325. 

United  States  v.  Rice,  4  Wheaton, 
246:  46,  75,  186. 

United  States  v.  Rodgers,  150  U. 
S.  249:  20,  148,  183. 

United  States  v.  Rogers,  4  How- 
ard, 567:  42. 

United  States  v.  Sandoval,  231  U. 
S.  28:  42. 

United  States  v.  Smith,  5  Wheat- 
on, 153:  32. 

United  States  v.  Swan,  50  Fed. 
108:  171. 

United  States  v.  The  Kodiak,  53 

Fed.  126:    171. 
United  States  v.  The  Schooner  La 

Jeune  Eugenie,  2  Mason,  409:  1. 


848 


TABLE  OF  CASES. 


United  States  v.  Trumbull,  48 
Fed.  99;  56  Fed.  505:  823. 

United  States  v.  Vallejo,  1  Black, 
541:  320. 

United  States  v.  Wagner,  L.  R. 
2  Ch.  582:  211. 

United  States  v.  Wiley,  11  Wal- 
lace, 508:  521. 

United  States  v.  Williams,  194  U. 
S.  279:  134. 

United  States  v.  Wiltberger,  5 
Wheaton,  76:  175. 

Urna,  The,  L.  R.  [1920]  A.  C. 
899:  601. 

Urquhart  v.  Butterfield,  37  Ch. 
Div.  357:  137. 

Usparicha  v.  Noble,  13  East,  332: 
476. 


Valeria,  The,  L.  R.  [1921]  1  A.  C. 

477:    787. 
van  Deventer  v.  Hancke  and  Mos- 

sop,  Transvaal  L.  R.   [1903]    T. 

S.  401:    289. 
Vandyck    v.    Whitmore,    1    East, 

475:    476. 
Vavasseur  v.  Krupp,  L.  R.  9  Ch. 

D.  351:     260,  248,  252. 
Veitia    v.    Fortnna    Estates,    240 

Fed.  256:     211. 
Venice,  The,  2  Wallace,  258:   294, 

529. 
Venizelos,   The,  Jour.  Soc.   Comp. 

Leg.   (N.  S.),  XVI,  70:   768. 
Venus,  The,  4  C.  Robinson,  355: 

605. 
Venus,  The,  8  Cranch,  253:     137, 

419,  429,  431. 
Vesta,   The,  L.  R.    [1921]   1  A.  C. 

774:    595. 
Veteran,     The,     Takahashi,     714: 

659. 
Victoria,   The,  v.   Quill'wark,  The, 

1922,    1    Scots   Law   Times,    65: 

256. 
Vigilantia,  The,  1  C.  Robinson,  1: 

425,  429,  595. 
Vilas  V.  City  of  Manila,  220  U.  S. 

345:    S15. 


Viola  v.  MacKenzie,  Mann  &  Co., 
24  Que.  K.  B.  31:  519. 

Virginia  v.  Tennessee,  148  U.  S. 
503:  287. 

Viveash  v.  Becker,  3  M.  &  S.  284: 
231,  331. 

Vokl  v.  Governors  of  Rotunda 
Hospital,  L.  R.  [1914]  2  I.  R. 
543:  519. 

Volant,  The,  5  Wallace,  179:   631. 

Vrou  Sarah,  The,  1  Dodson,  355n.: 
601. 

Vrouw  Judith,  The,  1  C.  Robin- 
son, 150:  651,  664. 

Vrow  Anna  Catharina,  The,  5  C. 
Robinson,  15:  575,  787. 

Vrow  Anna  Catharina,  The,  5  C. 
Robinson,  161:  451,  457. 

Vrow  Anna.  Catharina,  The,  6  C. 
Robinson,  269:  630. 

Vrow  Henrica,  The,  4  C.  Robin- 
son, 343:  630. 

Vrow  Johanna,  The,  2  C.  Robin- 
son, 109:  664. 

Vroio  Margaretha,  The,  1  C.  Rob- 
inson, 336:  579. 

W 
Wadsworth    v.    Queen    of    Spain, 

17  Q.  B.  171:    252. 

Walker  v.  Baird,  L.  R.   [1892]  A. 

C.  491:     344. 
Walsingham    Packet,    The,    2    C. 

Robinson,  77:     32. 
Ward  v.   Smith,   7   Wallace,   447: 

496. 
Ware   v.    Hylton,    3    Dallas,    199: 

31,  53,  345,  531. 
Washington  v.  Oregon,  211  U.  S. 

127,  214  U.  S.  205:    148. 
Washington,  The,  Moore,  Int.  Arb. 

IV,  4342:     156. 
Washington   University  v.   Finch, 

18  Wallace,  106:     496. 
Wedding  v.  Meyler,  192  U.  S.  573 : 

148. 

Wells  v.  Williams,  1  Ld.  Ray- 
mond, 282:  392,  496,  518. 

Welvaart,  The,  1  C.  Robinson, 
122:  766. 


TABLE  OF  CASES. 


849 


Welvaart   Van   Pillaw,   The,   2   C. 

Robinson,  128:     660,  665. 
Western    Maid,    The,    257    U.    S. 

419:     261. 
West  Rand  Central  Gold  Mining 

Co.    Lt.    v.    The    King,    L.    R. 

[1905]  2  K.  B.  391:    28,  98,  305. 
Wheelwright      v.      DePeyster,      1 

Johnson,  471:    628. 
Whitney  v.  Robertson,   124  U.  S. 

190:    301,  346. 
Whiton  v.  Albany  Insurance  Co., 

109  Mass.  24:    286. 
Wiborg  v.  United   States,   163   U. 

S.  632:    75,  819. 
Wiggins   v.   United   States,   3    Ct. 

Cl.  412:    533. 

Wildenhus'  Case,  120  U.  S.  1:  176. 
William,  The,  5  C.  Robinson,  385: 

725,  767. 
William,  The,  6  C.  Robinson,  316: 

577. 
William  Bagaley,  The,  5  Wallace, 

377:    430,  495,  496,  533,  660. 
William    Penn,    The,   Fed.    Cases, 

No.  3372:    605. 
Williams  v.  Bruffy,  96  U.  S.  176: 

74,  83,  531. 
Williams    v.    Commonwealth,    116 

Va.  272:    137. 
Williams  v.  Paine,  169  U.  S.  55: 

496. 
Willison  v.  Patterson,  7  Taunton, 

439:    474. 

Wilson  v.  Blanco,  56  N.  Y.  Supe- 
rior Ct.  582:    230. 
W.  L.  Ingle,  Lt.  v.  Mannheim  In- 
surance Co.,  L.  R.    [1914]    1  K. 

B.  227:    496. 


Wolff  v.   Oxholm,   6   M.  &  S.   92: 

486,  531. 
Woodward  y.  de  Graffenried,  238 

U.  S.  284:    42. 
Worcester    v.    Georgia,    6    Peters, 

515:    41,  64. 
Wren,  The,  6  Wallace,  582:     659, 

660. 
Wright  v.  Henkel,  190  U.  S.  40: 

357. 

Wulfsohn  v.  Russian  Soviet  Gov- 
ernment,  66  N.  Y.  L.   J.  1711: 

58. 


Yangtsze  Insurance  Association  v. 
Indemnity  Mutual  Marine  As- 
surance Co.,  L.  R.  [1908]  1  K. 
B.  910:  682. 

Yeaton  v.  Fry,  5  Cranch,  335:  659. 

Yong  Vrow  Adriana,  The,  Burrell, 
178:  637. 

Yordi  v.  Nolte,  215  U.  S.  227:  357. 

Young  v.  The  Scotia,  L.  R.  [1903] 
A.  C.  501:  252. 

Young  v.  United  States,  97  U.  S. 
39:  457,  528,  531. 

Young  Jacob  and  Johanna,  The, 
1  C.  Robinson,  20:  604. 

Yrisarri  v.  Clement,  2  C.  &  P. 
223,  3  Bing.  432:  57. 


Zambesi,  The,  1  Br.  &  Col.  P.  C. 

358:    643. 
Zamora,  The,  L.  R.  [1916]  2  A.  C. 

77:    32,  136,  578,  619,  708. 
Zinc  Corporation  v.  Hirsch,  L.  R, 

[1916]  1  K.  B.  541:    495. 
Zollverein,  The,  Swabey,  96:   118. 


INDEX  TO  NOTES, 

[BEFEBENCES  ARE  TO  PAGIS.] 


ACCRETION,  147. 

ADMIRALTY  LAW,  19. 

AERIAL  JURISDICTION,  137. 

ALABAMA  AND  KEARSARGE,  battle  between,  172. 

ALABAMA  CONTROVERSY,  821. 

ALIENS,  Exclusion  of,  134;    expulsion  of,  396. 

ANGARY,  right  of,  533. 

ASYLUM  ON  SHIPS,  185. 

AUSTRIAN  SUCCESSION  STATES,  106. 

AVIS  DU  CONSEIL  D'ETAT,  184. 

BAYS,  jurisdiction  over,  155. 

BELLIGERENCY,  recognition  of,  74. 

BERLIN  AND   MILAN  DECREES,  670,  707. 

BRAZIL,  change  from  empire  to  republic,  82;  seizure  of  German  ships 
by,  373;  method  of -entry  into  the  Great  War,  387;  extradition 
treaty  with  Uruguay,  356. 

BRITISH  AND  AMERICAN  CLAIMS  COMMISSION,  664,  734. 

CAPITULATIONS,  Turkish,  278. 

CAPTURED  PROPERTY,  title  to,  578,  629. 

CHINA,  exterritoriality  in,  23,  279;  international  law  in,  22. 

CLAIM  OF  TERRITORY,  786. 

COAST  TRADE,  636. 

COMITY  OF  NATIONS,  21. 

CONCESSIONS,  effect  of  change  of  jurisdiction  on,  107. 

CONFLICT  OF  LAWS,  20. 

CONSUL,  status  of,  231;  office  of,  278,  339. 

CONTRABAND,  export  of  by  neutrals,  822. 

CONTRACTS  OF  A  STATE,  82. 

CORPORATIONS  in  international  law,  449. 

CUTTING  CASE,  136. 

DEBTS,  confiscation  of,  531;  effect  of  transfer  of  jurisdiction  on,  101. 

DECLARATION  OF  LONDON,  575,  626,  679,  680. 

DECLARATION  OF  PARIS,  576. 

DIPLOMATIC  MISSIONS,  338. 

DIPLOMATIC  PRIVILEGE,  waiver  of,  229. 

DOMICILE,  civil  or  personal,  136;  commercial,  429;  In  oriental  coun- 
tries, 431. 

EGYPT,  status  of,  65. 

EQUALITY  OF  STATES,  50. 

EXECUTIVE  AGREEMENTS,  345. 

EXTRATERRITORIAL  CRIME,  136. 

FACTORY  SYSTEM,  432. 

FISHING  VESSELS,  exemption  from  capture,  604. 

FRANCE,  changes  of  government  in,  81;  relations  of  United  States 
with  in  1799,  388. 

GENET  AFFAIR,  787. 

GERMANY,  geographical  position,  661;  war  zone  of  1917,  722;  status 
of  government  owned  vessels  in,  259. 

HAGUE  CONVENTIONS,  362,  386,  474,  531,  533,  579,  626. 

851 


852  INDEX  TO  NOTES. 

[BEFEKENCES  ARE  TO  PAGES.] 

HIGH  SEAS,  defensive  measures  on,  171. 

HOSPITALS  SHIPS,  exemption  from  capture,  605. 

HOVERING  ACTS,  172. 

INDIA,  status  of  native  states  of,  64. 

INDIANS,  American,  status  of,  41. 

INSURANCE  OF  ENEMY  PROPERTY,  475. 

INSURGENCY,  75. 

INTEREST  DURING  WAR,  521. 

INTERNATIONAL  PRIZE  COURT,  626. 

INTERNMENT  OF  ALIENS,  397. 

INTERVENTION,  53. 

JAPAN,  international  law  in,  22;  international  position  of,  23;  test  of 

enemy  character  in,  429;   prize  law  in,  700,  767. 
LEAGUE  OF  NATIONS,  58,  65;   Permanent  Court  of,  363. 
LICENSES  TO  TRADE  WITH  ENEMY,  476. 
MAILS,  belligerent  interference  with,  578. 
MANDATES,  under  the  League  of  Nations,  65. 
MARITIME  LAW,  19. 
MARTIAL  LAW,  204. 
MILITARY  LAW,  203. 
MILITARY  OCCUPANCY,  106. 
MOST-FAVORED-NATION  CLAUSE,  346. 
OCCUPATION,  285. 

PANAMA,  recognition  of,  53;   relation  to  United  States,  64. 
PAPACY,  international  status  of,  51. 
PERMANENT  COURT  OF  ARBITRATION,  362. 
PERMANENT  COURT  OF  INTERNATIONAL  JUSTICE,  363. 
POLITICAL  OFFENSES,  356. 
PREEMPTION  OF  CAPTURED  GOODS,  701. 
PRIZE  COURTS,  relation  to  common  law  courts,  475;  right  of  enemy 

claimant  to  appear  before,  519. 
PROTEGfi  SYSTEM,  279. 
PUBLIC  PROPERTY  EMPLOYED  IN  PRIVATE  COMMERCE,  status 

of,  258. 
RECOGNITION  OF  BELLIGERENCY,  74;  of  new  governments,  54;  of 

new  states,  52;   by  courts,  54,  57. 

REQUISITION  OF  GOODS  IN  CUSTODY  OF  PRIZE  COURT,  577. 
REQUISITION  OF  PROPERTY  ON  LAND,  135. 
RIPARIAN  JURISDICTION,  148. 
RULE  OF  1756,  635,  766. 
SEAMEN'S  ACT  OF  1915,  182. 
SHIPS,  jurisdiction  over  in  port,  181,  260;   jurisdiction  dependent  on 

ownership,  258;  national  character  of,  457;   detention  at  outbreak 

of  war,  532;  transfers  in  war,  595. 
SIAM,  status  of,  23. 
SILESIAN  LOAN,  531. 
SOVEREIGNS  AS   PLAINTIFFS,  211. 
SOVIET  RUSSIA,  status  of,  54,  55. 
STATES,  classification,  50;   equality,  50. 
STATUTES  OF  LIMITATIONS,  effect  of  war  on,  521. 
THREE-MILE  RULE,  153;   proposals  to  modify,  154. 
TREATIES,  status  of,  344. 
TRENT  AFFAIR,  685. 
WAR,  effect  on  statute  of  limitations,  521;  on  running  of  interest,  521; 

changes  in  law  of,  723 ;  declaration  of,  386. 
WASHINGTON,  neutrality  policy  of,  785. 
WASHINGTON,   Three  Rules  of  Treaty  of,  821. 
WASHINGTON  CONFERENCE  ON  LIMITATION  OF  ARMAMENT   23 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


A     000  688  300     3 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

Los  Angeles 
This  book  is  DUE  on  the  last  date  stamped  below. 


FEB  4    1975 


Form  L9-Series  4939 


